Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20190002&lang=es vol. 25 num. 2 lang. es <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b><i>Perficio emptionis </i>in case of a sale of wine in Roman law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200001&lng=es&nrm=iso&tlng=es Sale of things determined by weight, number or measure was regarded as a specific kind in Roman law. In order to establish an obligation, the object of sale had to be physically measured out, weighed or pointed out by counting. Still, it was debated among classical lawyers when exactly such a contract becomes perfect and thus binding for both contractual parties. The article attempts to pinpoint the moment of perficio emptionis of generic things, using the example of a sale of wine. Due to the character of such a thing, the sources mention a special set of rules for this kind of sale that require measuring out the wine sold (mensura) and contain an option to taste the wine (degustatio), as well as to spill out the wine sold (effundere vinum). All of these may be used in the analysis of the perficio emptionis as an indication of legal effects that take place at the moment of mensura and degustatio. <![CDATA[<b>Forty-five years of clinical legal education in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200002&lng=es&nrm=iso&tlng=es In the fourth century BC, Socrates and Aristotle - and in the thirteenth century AD, Roger Bacon - viewed "induction or experimentation as the sine qua non of all knowledge". In the nineteenth century, John Dewey proposed that true education is derived from reflective life experience, rather than from merely memorising facts. These views, over centuries, still underscore the clinical legal education (CLE) methodology. A comparative analysis indicates the development of legal education and CLE in the USA and South Africa. This contribution discusses the establishment and evolution of CLE at South African universities from the 1970s, through the client-centred focus during the 1980s, the accreditation of university law clinics by the South African Law Society in 1993, and the establishment of AULAI (now SAULCA), whose primary focus is to promote clinical programmes in South Africa. In particular, this contribution looks at the development of CLE at the Wits Law Clinic, currently aligned with global best practices in CLE, and at student education and scholarship, whilst assisting the poor and marginalised. The diversity in our multicultural society impacts on students' receptivity to particular forms of CLE, which were accentuated during student campaigns in 2015 to decolonise curricula. The challenges and the processes of decolonising the CLE curriculum may lie in focusing on culture, language, professional ethics and on the clients served by the clinic. <![CDATA[<b>Criminalisation of damage to property by South African common-law crimes</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200003&lng=es&nrm=iso&tlng=es This contribution examines the common-law crimes of malicious injury to property and arson. The current definitions of the crimes are set out, before the historical development of each crime is critically evaluated. In the concluding part, the nature and structure of the crimes are explored in the context of the rationales underpinning the crimes. It is submitted that despite the expansion of the crime of arson through case law not being in accordance with the purpose of the crime, the current definition of this crime has been settled. It is, however, contended that the wider definition of malicious injury to property, flowing from certain cases and academic interpretation, is not similarly entrenched in South African law and that any similar extension to the ambit of this crime therefore should not form part of the current definition. <![CDATA[<b>Race, ethnicity, discrimination and violence in "colour-blind" France</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200004&lng=es&nrm=iso&tlng=es The Universalist ideals of the French Revolution, which proclaimed that all men are born equal, inspired a principle that crystallised during the nineteenth-century Republican period. This principle asserts that racial and ethnic differences have to be minimised. Race and ethnicity are, therefore, theoretically not recognised in France. The only recognised distinction in France is between a French citizen and a foreigner. As a result of this principle, a vestige of the late nineteenth century, any laws, government policies, data and research that are based on race or ethnicity, are prohibited in France. There is consequently a paucity of comparative research and data on racial and ethnic groups in France. Adherence to this principle has also stymied honest debates about racism and racial discrimination in France. Since the twentieth century, however, there has been a tendency to depart from this principle, as evidenced by several government policies and practices that tacitly recognise race and ethnicity. A departure from the principle is also evident in several laws that make explicit reference to race and ethnicity. Such laws include anti-discrimination laws, laws that prohibit incitement to racial violence and laws that are akin to hate-crime laws in the Anglo-Saxon world. This contribution examines some of these laws and government policies, as well as the historical circumstances that led to their enactment and implementation. It focuses on migration to France from the mid-twentieth century, and on the social and economic conditions of migrants. A departure from the Universalist principle, which espouses the non-recognition of race and ethnicity, was inevitable, since by the mid-twentieth century, France had become a racially and ethnically-diverse country, in which racial and ethnic discrimination and violence were widespread. In the conclusion, some consideration is given to the relevance of the principle that espouses the non-recognition of race and ethnicity, and which inspired the adoption of a "colour-blind" assimilationist model in present-day France. <![CDATA[<b>Private schools in South African legal history</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200005&lng=es&nrm=iso&tlng=es Following the British model, the education laws of the Colony of the Cape of Good Hope (later the Cape Province) and the Transvaal historically recognised a basic distinction between public schools and private schools. The churches played a leading role in the development of private schools, which made a significant contribution to education in South Africa, especially for black children. Private schools enjoyed a high degree of independence in the colonial and pre-apartheid period. However, these schools were brought to heel during the apartheid era, with admissions policies, curricula and language medium of instruction being brought under state control, thus impairing their independence and enforcing racial segregation. <![CDATA[<b>A historical exposition of spatial injustice and segregated urban settlement in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200006&lng=es&nrm=iso&tlng=es Spatial injustice and urban residential segregation represent significant dimensions in the historical development of the settlement patterns of South Africa's urban poor, which have strong links to colonialism and apartheid. A myriad of political, economic, legal and social factors contributed to the legacy of spatial injustice and socioeconomic exclusion that characterises contemporary towns and cities. This contribution provides a historical exposition of the leading causes of spatial injustice and segregated urban settlement in South Africa during colonialism and apartheid, and adopts a spatial perspective in its analysis of relevant legislation, case law and academic literature. Advancing this critical spatial awareness is essential, as it remains elusive in current approaches to the interpretation and implementation of the housing rights of South Africa's urban poor. <![CDATA[<b>The development of racially defined punishment in colonial Natal: The early history of Durban's Point Prison</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200007&lng=es&nrm=iso&tlng=es This article traces the early history of the Point Convict Station situated near the entrance to Durban's harbour. Contained in the history of this building are a number of themes that are unique to the penal history of KwaZulu-Natal and, more widely, southern Africa. With its origins dating back to the turn of the twentieth century, this particular building symbolises the expression of a penal ideology, which we call "racially differentiated punishment". The building represents a particular regime of punishment that was reserved for non-European prisoners in particular. It is argued that, within the context of colonial Natal, a number of central themes distinguished the punishment of non-European prisoners from that of European prisoners at ideological level. White colonial authorities regarded labour as an extremely important element in the punishment of black offenders in particular. Further, there was a clear policy to push for complete racial segregation in the penal system of the colony of Natal around the turn of the twentieth century. In relation to this theme, we explore the development of a penal ideology based explicitly on the separation of different racial groups - the significance of this lies in the fact that these policies were implemented almost half a century before the advent of apartheid in South Africa. <![CDATA[<b>Legal and public policy considerations that justify legislative development of the law of delict</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200008&lng=es&nrm=iso&tlng=es An evaluation of the different ways in which the South African legal system currently provides compensation for crime victims suggests that an alternative form of crime victim compensation should be considered. The most common solution adopted in foreign jurisdictions is the enactment of a statutory crime victim compensation scheme. The crucial question is whether such legislative development could be justified in South Africa. To investigate the justifiability of a crime victim compensation scheme, the following approach is suggested. First, a theoretical framework must be developed to provide an outline for justifiable statutory reform of the law of delict insofar as the compensation of victims is generally concerned. Only once this has been done, can attention be given to the more specific question, namely whether the potential enactment of a statutory compensation fund for crime victims could fit into such a framework. This contribution focuses on the first issue, namely setting out a theoretical framework for future justifiable statutory development of the law of delict. This is done by identifying legal and public policy considerations that the legislature have used in the past to develop the law relating to the compensation of specific categories of victims. This contribution therefore looks at the historical development of three major statutes that have developed the law relating to the compensation of specific categories of victims: the Road Accident Fund Act 56 of 1996, the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the Consumer Protection Act 68 of 2008. <![CDATA[<b>The judicial officers of the Transvaal High Court, 1877-1881</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000200009&lng=es&nrm=iso&tlng=es The Transvaal High Court was established in 1877. This was during the British annexation of the Transvaal (or Zuid-Afrikaansche Republiek), which ended in 1881 with the signing of the Pretoria and (and later) London Conventions. The first judge of this court, John Gilbert Kotzé, reported some of the judgements of this court for the period from 1877 to 1881, where he also mentions the names of the persons appointed as judicial officers of the court. This contribution takes a closer look at the official opening of the court and at the various persons who served the court during this period either as members of the bench, or in the capacity of Attorney General or of Registrar and Master.