Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20150002&lang=en vol. 21 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>The beginnings of a mixed system or, advocates at the Cape during the early nineteenth century, 1828-1850</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200001&lng=en&nrm=iso&tlng=en In his study of the judgments of the Supreme Court of the Colony of Good Hope during the late nineteenth century, Reinhard Zimmermann stressed the importance of the role of the Bar. A study of the professional activity of the advocates at the Cape Bar during the early nineteenth century necessitates reconsideration of current assumptions. The Charter of Justice of 1827 required advocates to have been admitted to a United Kingdom Bar or to be doctors of law of Oxford, Cambridge or Dublin. This gave rise to the misconception that from the outset the survival of Roman-Dutch law was under threat, if not from a hostile Bar, at least from one with little knowledge of Roman-Dutch Law. The Charter of Justice also made provision for the admission of persons who had practised as advocates in the former Court of Justice and from 1803, were required to have graduated in law in Holland. For the first ten years of its existence, only former advocates of the old Court of Justice practised before the Cape Supreme Court, the one exception being the Attorney-General. Perusal of the Menzies' Reports, which cover the years 1828 to 1849, reveals the extent to which advocates relied on Roman-Dutch authority. In every contested civil case old authority is cited, sometimes on an extensive scale. During the first years of the Cape Supreme Court, the advocates played a vital role in affirming the status of Roman-Dutch law as an integral part of the law of the Colony. This continued throughout the nineteenth century. At the Cape during the nineteenth century there was no bellum juridicum between the proponents of Roman-Dutch law and English law. This does not mean that Roman-Dutch law was the only actor on the stage. Ties with Holland had been severed. Roman Dutch-law found application within an English colonial political environment, and the courts operated within a procedural regime of English origin. In the Netherlands, the country of origin of Roman-Dutch law, the introduction of a code based on the French Civil Code meant that Roman-Dutch law was no longer a living system. In the circumstances, developments in the field of mercantile law, in particular, were assimilated with reference to English law and through legislation derived from English precedents. Whatever tensions there might have been at times, these various elements were in fact the building blocks of the new mixed system. From the very first years, the advocates, in a pragmatic way, played their part in fashioning a coherent system from these building blocks. <![CDATA[<b>A historical review of the development of the post-apartheid South African LLB degree - with particular reference to legal ethics</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200002&lng=en&nrm=iso&tlng=en This article considers the historical, political and social context of the LLB degree -especially insofar as it pertains to teaching legal ethics. It reviews the role of the law, the legal profession and the system higher education not only during the apartheid era, but also during the transition to democracy and in contemporary South Africa. In addition, this article also provides a detailed explication of the efforts to transform legal education since 1994. Aspects which are especially relevant to the question of legal ethics in the LLB degree are highlighted. Finally, the current state of legal education in South Africa is discussed. <![CDATA[<b>The Cape and Natal Special Partnerships Limited Liability Acts. A statutory history</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200003&lng=en&nrm=iso&tlng=en The origins of the Cape Special Partnerships Limited Liability Act of 1861 and the Natal Special Partnerships Limited Liability Act of 1864 have been open to question for quite some time in South Africa. The view that it was taken over directly from the United Kingdom cannot be supported. This contribution traces the origins of this legislation through the limited partnership legislation of New Zealand and Australia, back to the influential New York Limited Partnerships Act of 1822, and even further back to the very first limited partnership legislation in a common-law jurisdiction, namely the Irish Anonymous Partnerships Act of 1781, French Code de Commerce and Louis XIV's Ordinance Pour le Commerce of 1673. This supports a conclusion that in the latter Ordinance, limited partnership legislation and the partnership en commandite ultimately share a remote ancestor. In addition, attention is drawn briefly to the fortunes of the Natal and, especially, the Cape legislation in South Africa and four other jurisdictions in Southern Africa. <![CDATA[<b><i>Maritus v Mulier: </i></b><b>The double picture in adultery laws from Romulus to Augustus</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200004&lng=en&nrm=iso&tlng=en This article investigates the double set of standards applicable to Roman spouses' adultery. It argues that adultery occurred from Romulus to Augustus and was always considered to be the extramarital relationship by or with married women. It examines the position of both the unfaithful husband and the unfaithful wife with regard to conduct which resulted in adultery, its consequences and the measures or remedies available to the injured spouse. Furthermore, the article argues that the social role of the Roman materfamilias and matrona, the Roman male-dominant society and the hidden agendas of Roman authors could be seen as possible reasons for the different moral principles. The article concludes by pointing out that the unfaithful husband was in a much more favourable position than the unfaithful wife and that the social role of the Roman materfamilias and matrona in a male-dominant society appears to have justified these double standards. <![CDATA[<b>The origin and development of emergency regimes in Cameroon</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200005&lng=en&nrm=iso&tlng=en The purpose of this study is to trace the origin and development of emergency regimes in Cameroon, to address their negative impact on the current structure of the political system and to highlight the need for change in the country. Emergency regimes are generally brought into being in exceptional circumstances and allow states to (legally) suspend law and infringe human rights when confronted by threats to their existence. They generally include a state of emergency, a state of exception, a state of siege and martial rule. In the case of Cameroon, these regimes are a legacy of French colonialism, and were introduced into the country's legal system to sustain harsh imperialist policies. Traditionally it is believed that a state of emergency and a state of exception are declared in response to circumstances threatening the state's existence (such as natural cataclysms, invasions, and general insurrections), but the peculiarity of these regimes in Cameroon is that they have been and still are used as a political device. Indeed, in the context of colonialism and war of independence between French colonial authorities, their local acolytes and indigenous Cameroonians, emergency regimes played a key role in eliminating political challengers, increasing the powers of the executive, and absolving it of any accountability and responsibility. However, in the process, these measures ended up losing their exceptional character as they entered the sphere of normalcy. The current hypertrophy of the powers of the executive entity in Cameroon dates back to that period, and it is consequently difficult to distinguish between a Cameroon society in crisis and one in peacetime. <![CDATA[<b>Rileggendo L'Eginetico di Isocrate</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200006&lng=en&nrm=iso&tlng=en Taking inspiration from the opinion of HJ Wolff, the article examines the reasons that move the adversary of the speaker to seek the annulment of Trasilochos's will. According to Wolff, the request would be in accordance with a law of Aegina analogous to the law of Solon declaring a will invalid if the testator were declared out of mind, having been accused of writing a will under the influence of a woman. But in the speech only the sister and the mother of Trasilochos are mentioned, and it was certainly not this kind of women that were considered by Solon or the supposed law of Aegina. According to the author of this article the court should rather decide whether the sisters of a brother who had died without descendants should be considered epikleroi or not. In the first case a woman who presents herself as a daughter of Trasilochos will be entitled to obtain at least half of the inheritance of her father, thus removing it from the speaker's wife. <![CDATA[<b><i>Carta sine litteris. </i></b><b>Enea Silvio Piccolomini und die urkundenpraxis im Frühmittelalter</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200007&lng=en&nrm=iso&tlng=en Enea Silvio Piccolomini, in his work entitled De Europa written in 1458, tells an interesting story defined as a legend in terms of genre about a duke called Ingo, who lived during the reign of Charlemagne. This narrative claims that in 790 dux gentis Ingo held a feast for the inhabitants of his province where food was served in golden and silver bowls to the peasants allowed to appear before him, while to the dignitaries standing further away from him received their food in bowls made of clay. The researchers' attention is deservedly raised by the question why this parabolic story with biblical tone was included in Enea Silvio's work; and if it had been borrowed, from whom? The answer seems to be very simple: it derives from the Conversio Bagoariorum et Carantanorum drafted regarding the lawsuit instituted Methodius. In the case narrated in the Conversio Ingo sent a charter, or rather a parchment without any writing or letters on it (carta sine litteris), which provided his legate with sufficient authenticity to demand obedience from the people. In this study - after having compared the two narratives and outlined the place of De Europa in Enea Silvio Piccolomini's oeuvre as well as the circumstances of the drafting and tendencies of the Conversio Bagoariorum et Carantanorum, the author attempts to answer the following questions: To what extent can duke Ingo, mentioned by Enea Silvio and not questioned in the literature for long centuries, be considered a real historical person? Does the Conversio refer to Ingo as a duke, and if it does, what is his existence as a duke and introduction in the literature as a duke owing to? What could the meaning of carta sine litteris referred to in Conversio have been, and why did Enea Silvio not take this item over although he could have put it forward as a further proof of Ingo's dignity? To what literary prefigurations can the description of the feast held by Ingo be traced back to, and what role did it play in the Conversio? And, regarding the borrowing of the Ingo story by Enea Silvio, what possible intermediary writing and author can be reckoned with? <![CDATA[<b>Like a bad penny: The problem of chronic overcrowding in the prisons of colonial Natal: 1845 to 1910 (Part 2)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200008&lng=en&nrm=iso&tlng=en During recent decades, like the proverbial bad penny, the problem of chronic overcrowding has turned up over and over again to haunt South African prison administrators. As this article indicates, however, overcrowding in South African prisons is not only a recent phenomenon. Overcrowding has been a significant feature of imprisonment in South Africa from the very introduction of this form of punishment into the country. This article examines overcrowding in the prisons of colonial Natal from 1845 until 1910. Through an analysis of the official discourse surrounding this difficult problem throughout the colonial period, this article shows that imprisonment as a form of punishment in South Africa has always been inextricably bound up with the problem of overcrowding. By illustrating the deeply entrenched nature of the problem from a historical perspective, this article hopes to provide present day prison administrators with useful insights into the nature of their struggle to overcome the problem in the present. The article is in two parts. Part 1 of the article covers the period 1845 to 1875, while Part 2 covers the period 1875 to 1910. <![CDATA[<b>"He's one who minds the boss's business ..."</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200009&lng=en&nrm=iso&tlng=en This article deals mainly with the question why the Romans did not know agency and how they successfully managed to cope without it. Various relevant matters are discussed, such as the position of slaves and children in the paterfamilias's power, the praetorian actions that made commerce possible despite the lack of an institution such as agency, and the peculium. Although Roman law never really developed an institution of direct representation, it gradually adapted to the increasing commercial needs and approached recognition of agency in contracts. Factors that contributed to this, were firstly the considerable use of slaves and sons subject to power, and secondly the de facto agency exercised by institores and exercitores. <![CDATA[<b>Multilingualism in South African courts: The legislative regulation of language in the Cape during the nineteenth century</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200010&lng=en&nrm=iso&tlng=en Legal pluralism, and with it multilingualism, was introduced into Southern Africa when the first Dutch refreshment station expanded into a settlement. Dutch remained the official language until after the second British Occupation of the Cape in 1806. Indigenous African cultural institutions, including languages, were notoriously ignored in early South African history and the needs of the indigenous population played no role in any decisions relating to judicial language both during the Dutch and the English administrations of the Cape, and later in the territories beyond its borders. This article focuses on the legislative regulation of the language medium in nineteenth-century Cape courts and the contest between Dutch and English for the position of official judicial language. Today the language medium in the High Courts is limited to English and Afrikaans, but it is apparent that English has evolved as the legal lingua franca and de facto most proceedings take place in English. <![CDATA[<b>Of naval courts martial and prize claims: Some legal consequences of commodore Johnstone's secret mission to the Cape of Good Hope and the "battle" of Saldanha Bay, 1781 (Part 1)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200011&lng=en&nrm=iso&tlng=en Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures. <![CDATA[<b>The thirty-three articles and the application of law in the Zuid-Afrikaansche Republiek</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200012&lng=en&nrm=iso&tlng=en The Thirty-Three Articles was adopted by the Potchefstroom Burgerraad on 9 April 1844 and confirmed four years later on 23 May 1849 by the unified Volksraad of the Zuid-Afrikaansche Republiek at Derdepoort. The Thirty-Three Articles contained provisions pertaining to general and judicial administration and was held out as a kind of constitution in its day. It retained its status as a basic law despite the adoption of the constitutions of 1858, 1889 and 1896, and was only repealed in 1901 after the British annexation of the Republic. The Thirty-Three Articles had a lasting impact on the legal development of the Zuid-Afrikaansche Republiek. This contribution examines its nature and content, focusing in particular on article 31 which made provision for the law to be applied. Reference is made to three different approaches in the application of this provision by the courts. <![CDATA[<b>Tamás Nótári <i>Handling of Facts and Forensic Tactics in Cicero's Defence Speeches</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200013&lng=en&nrm=iso&tlng=en The Thirty-Three Articles was adopted by the Potchefstroom Burgerraad on 9 April 1844 and confirmed four years later on 23 May 1849 by the unified Volksraad of the Zuid-Afrikaansche Republiek at Derdepoort. The Thirty-Three Articles contained provisions pertaining to general and judicial administration and was held out as a kind of constitution in its day. It retained its status as a basic law despite the adoption of the constitutions of 1858, 1889 and 1896, and was only repealed in 1901 after the British annexation of the Republic. The Thirty-Three Articles had a lasting impact on the legal development of the Zuid-Afrikaansche Republiek. This contribution examines its nature and content, focusing in particular on article 31 which made provision for the law to be applied. Reference is made to three different approaches in the application of this provision by the courts. <![CDATA[<b>Wilhelm Brauneder <i>Europäische Privatrechtsgeschichte</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200014&lng=en&nrm=iso&tlng=en The Thirty-Three Articles was adopted by the Potchefstroom Burgerraad on 9 April 1844 and confirmed four years later on 23 May 1849 by the unified Volksraad of the Zuid-Afrikaansche Republiek at Derdepoort. The Thirty-Three Articles contained provisions pertaining to general and judicial administration and was held out as a kind of constitution in its day. It retained its status as a basic law despite the adoption of the constitutions of 1858, 1889 and 1896, and was only repealed in 1901 after the British annexation of the Republic. The Thirty-Three Articles had a lasting impact on the legal development of the Zuid-Afrikaansche Republiek. This contribution examines its nature and content, focusing in particular on article 31 which made provision for the law to be applied. Reference is made to three different approaches in the application of this provision by the courts. <![CDATA[<b>In memoriam - János Zlinszky (1928-2015)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200015&lng=en&nrm=iso&tlng=en The Thirty-Three Articles was adopted by the Potchefstroom Burgerraad on 9 April 1844 and confirmed four years later on 23 May 1849 by the unified Volksraad of the Zuid-Afrikaansche Republiek at Derdepoort. The Thirty-Three Articles contained provisions pertaining to general and judicial administration and was held out as a kind of constitution in its day. It retained its status as a basic law despite the adoption of the constitutions of 1858, 1889 and 1896, and was only repealed in 1901 after the British annexation of the Republic. The Thirty-Three Articles had a lasting impact on the legal development of the Zuid-Afrikaansche Republiek. This contribution examines its nature and content, focusing in particular on article 31 which made provision for the law to be applied. Reference is made to three different approaches in the application of this provision by the courts. <![CDATA[<b>Southern African Society of Legal Historians Conference: 5-9 October 2015</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2015000200016&lng=en&nrm=iso&tlng=en The Thirty-Three Articles was adopted by the Potchefstroom Burgerraad on 9 April 1844 and confirmed four years later on 23 May 1849 by the unified Volksraad of the Zuid-Afrikaansche Republiek at Derdepoort. The Thirty-Three Articles contained provisions pertaining to general and judicial administration and was held out as a kind of constitution in its day. It retained its status as a basic law despite the adoption of the constitutions of 1858, 1889 and 1896, and was only repealed in 1901 after the British annexation of the Republic. The Thirty-Three Articles had a lasting impact on the legal development of the Zuid-Afrikaansche Republiek. This contribution examines its nature and content, focusing in particular on article 31 which made provision for the law to be applied. Reference is made to three different approaches in the application of this provision by the courts.