Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20160002&lang=pt vol. 22 num. 2 lang. pt <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>The constitutional right to fair labour practices: a consideration of the influence and continued importance of the historical regulation of (un)fair labour practices pre-1977</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200001&lng=pt&nrm=iso&tlng=pt The gradual increase in the earth's population and the consequent decrease in natural resources necessitated the exchange of the right to an independent existence for the right to labour. Parties to the employment relationship, especially the employee, have been subject to unfair labour practices since primitive times. The common law contract of employment and subsequent legislation enacted since 1911, might have regulated the relationship between the employer and the employee to a certain extent, but did not specifically address fairness or fair labour practices, at least not until 1979. It is necessary to take note of an overview of the history of labour law until 1979, as such an overview emphasises the need for the regulation and protection of fair labour practices. It also provides insight into the current regulation of labour relations as well as the constitutional guarantee of fair labour practices. But it is not only important for the value which it provides in terms of the meaning of the current regulation; it also remains important to ensure the lawfulness of the contract of employment and actions in terms of the contract, and to ensure fairness of labour practices for employees not protected by existing labour legislation. <![CDATA[<b>L'emploi des standards en droit romain</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200002&lng=pt&nrm=iso&tlng=pt It is difficult to develop a definition of the legal concept of standard. In spite of this the term "standard" is often used in French law. For example, good faith (bonne foi), sound morals (bonnes mœurs) and pater familias (bon père de famille) are considered standards. We find the same concepts in Roman law. Moreover, it appears that the use of this kind of concepts is precocious: the action of the fiducia, which dates back at least to the second century BC, mentions the clause ut inter bonos bene agier. Yet, as is often the case, there is no general category that encompasses all these concepts. It is consequently tempting to classify them as "standards" to fill this void. Methodologically speaking, however, it is hard to establish if it is correct to use the term "standard". In fact, this classification raises a problem of coherence. The legal use of the term "standard", which is of Anglo-Saxon origin, is recent. It dates back to the 1920s. N Roscoe Pound probably used it first and had an important role in its success. French lawyers began to employ the concept of "standard" to achieve a more flexible interpretation of the statutory law. Is it pertinent to use a clearly anachronistic word to describe Roman reality? It would be reasonable to fear that the application of the term "standard" would result in a deformation of Roman law. Though, an analysis of the sources shows that it is possible and even fruitful to apply the contemporary concept of "standard" to Roman law. While it is true that it is anachronistic, using it seems to improve our understanding of Roman law. <![CDATA[<b><i>Existimatio </i></b><b>as "human dignity" in late-classical Roman law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200003&lng=pt&nrm=iso&tlng=pt Even though there are similarities between the two notions, in antiquity the term dignitas generally speaking does not have the same meaning as our modern idea of "human dignity". However, there is a possibility that for "human dignity" some Roman jurists actually used a term different from dignitas, namely existimatio. This article examines whether the term existimatio in the work of one Roman jurist in particular may be seen as akin to our modern conception of "human dignity", and, if so, what the scope and origin of existimatio in the late-classical Roman legal sources were. <![CDATA[<b>Human rights in the eighteenth-century travelogues of Franqois le Vaillant</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200004&lng=pt&nrm=iso&tlng=pt In seventeenth and eighteenth-century Europe, the Age of Enlightenment, eminent political and legal thinkers such as Locke and Rousseau defended the emancipation of the individual and the inalienable, natural rights of man such as the right to life, freedom and equality. They argued that every man is born free and inherently good but that he becomes corrupted by the constraints of society and civilisation. A certain harmony can be found again through a social contract with the state, the ultimate protector of man's inalienable rights. Within this philosophy, education is crucial to develop young people naturally without the negative impact of society. Only nature can elevate man. Enlightenment opened European minds to the exotic and the unknown and, as a consequence, broke with the prejudice of previous centuries against cultural difference. Enlightenment influenced many free-spirits of the day. One such free-spirit was the Frenchman Francois Le Vaillant who travelled through southern Africa between 1781 and 1784. He was not only influenced by the ideas of Rousseau but he was, because of his unusual and liberal education, the very incarnation of Rousseau's philosophy. As he travelled through Southern Africa, Le Vaillant became mesmerised with its indigenous peoples, especially the roaming Koina communities and the Xhosa, who, at that time, still lived a traditional and natural life. Even though he set off on his journeys as an ornithologist and a collector of specimens, Le Vaillant became, as he encountered the Koina and the Xhosa, a defender of the inalienable rights of the natural man. He became an emotional critic of encroachment by colonial settlers upon indigenous lands, forcing the Koina and the Xhosa into poverty, economic dependency, cultural alienation and loss of natural life. Le Vaillant published two travel journals; he introduced a new style of travel writing and made the European reader familiar with southern Africa. In doing so, he played a significant role in the defense of human rights through his criticism of the effects of colonial rule on indigenous peoples, not from an academic point of view but from the heart, based on first-hand experience in the field. <![CDATA[<b><i>Cum dignitate otium.</i></b><b> Remarks on Cicero's speech in defence of Sestius</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200005&lng=pt&nrm=iso&tlng=pt In this paper, first, we analysed the historical-legal background of the speech, which provided an insight into the events that evoked and followed Cicero's exile and calling him home. After that, it was worth paying attention to the thought of philosophy of the state articulated in Pro Sestio as Cicero determines the notion of optimates destined to govern the state by taking an individual approach - adjusting to the rhetorical situation but being true to his political conviction. In this respect, Cicero defined the goal that guides decent citizens (optimus quisque) in public life as cum dignitate otium, which crystallises in two keywords: dignitas, expressing moral values, firmness of mind, strength of character and dignity, and otium, the interest in material well-being, security (in law) and public tranquillity. <![CDATA[<b>To be or not to be of good fame, that is the question</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200006&lng=pt&nrm=iso&tlng=pt Duels are a breach of the peace, punished for centuries under the Justices of the Peace Act, 1361, which however may or may not contain the word not. This may be the background to Hamlet's soliloquy, To be or not to be, which is not a suicide speech: Hamlet knew that self-slaughter was forbidden, and none of the three actors listening to him, Ophelia, Claudius and Polonius, interpreted it as a suicide speech. <![CDATA[<b>Constitutional scapegoat: the dialectic between happiness and apartheid in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200007&lng=pt&nrm=iso&tlng=pt South African history is intrinsically linked to the apartheid era and its inevitable and persistent consequences. These consequences show that in some extreme political situations, leaders try to impose their ideology, and, in doing so, use either Constitutional rights or moral values as rhetorical scapegoats in order to dismantle our deepest commitment to ourselves in terms of our pursuit of happiness. In light of the historical documents that preceded the inauguration of the apartheid era, it is possible to identify that happiness appeared as a pivotal value under which the apartheid order would be erected. This paper aims to investigate the relation between apartheid and the misuse of happiness as a core value, addressing the idea of sadistic pleasure as a deformation of the ideal of human rights. Finally, the paper shows how the Constitution of South Africa, as well as other African Constitutions, has instituted the right to happiness in order to overcome the collective trauma generated by racism. <![CDATA[<b>The life and times of Cape Advocate Dirk Gysbert Reitz: a biographical note</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200008&lng=pt&nrm=iso&tlng=pt Dirk Gysbert Reitz was born in Cape Town in 1796 and died in the East Indies in 1853. An advocate at the Cape bar in the early 1820s, he emigrated to Batavia where he pursued a successful legal and judicial career. Through his life, we are afforded a snapshot of the state of law and legal administration and practice in two Roman-Dutch jurisdictions, the one by then a British and the other still a Dutch colony. <![CDATA[<b>Judicial administration beyond the Orange River from 1838 to 1843</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200009&lng=pt&nrm=iso&tlng=pt This article looks at the early administration of justice beyond the Orange River for the period from 1838 to 1843. During this time the areas east and west of the Drakensberg were administered as one by the Volksraad seated at Pietermaritzburg (east) and the adjunct council seated at Potchefstroom (west). Since no law reports for this period exist, not much is known about the administration of justice at the time. However, the 1838 and 1841 Regulations give some indication of the basic judicial structures and jurisdiction of the courts. Further deductions can be made from the minutes of the Volksraad during this period as well as a few additional documents that have survived. Lastly, this paper also considers the law that was applied during this period. <![CDATA[<b>Roberto de Ruggiero, Salvatore Riccobono & Filippo Vassalli - <i>Lezioni</i><i> 1930 - 1932. Scuola di Diritto Romano e Diritti Orientali raccolte da Károly Visky</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2016000200010&lng=pt&nrm=iso&tlng=pt This article looks at the early administration of justice beyond the Orange River for the period from 1838 to 1843. During this time the areas east and west of the Drakensberg were administered as one by the Volksraad seated at Pietermaritzburg (east) and the adjunct council seated at Potchefstroom (west). Since no law reports for this period exist, not much is known about the administration of justice at the time. However, the 1838 and 1841 Regulations give some indication of the basic judicial structures and jurisdiction of the courts. Further deductions can be made from the minutes of the Volksraad during this period as well as a few additional documents that have survived. Lastly, this paper also considers the law that was applied during this period.