Scielo RSS <![CDATA[Fundamina ]]> vol. 23 num. 2 lang. pt <![CDATA[SciELO Logo]]> <![CDATA[<b>BEE-ing Chinese in South Africa: a legal historic perspective</b>]]> This article traces the history and dilemma of the South African born Chinese (SABCs, also known as the indigenous Chinese) in terms of their legal dispensation. Within months of the implementation of the Broad-Based Black Economic Empowerment Act 35 of 2003, it became apparent that the Chinese communities were excluded as beneficiaries of the legislation as well as from the Employment Equity Act 55 of 1998. This situation was in line with the treatment that the Chinese had received since they first arrived in the Cape Colony towards the end of the seventeenth century, and was perpetuated throughout the subsequent centuries to beyond the 1994 new political dispensation. The exclusion of the Chinese from Broad-Based Black Economic Empowerment and Employment Equity and their legal action challenging the Acts, took place against the backdrop of stereotypical representation in popular consciousness and ignorance of a people who have been part of the South African past for three centuries. This article places the South African Chinese legal battle of the twenty-first century within the context of their perpetual invidious position in South Africa's past. It traces the neglected and checkered legal history of a marginalised minority. <![CDATA[<b>The historical prosecution of hate crimes in the United States of America</b>]]> Hate crimes refer to criminal conduct that is motivated by the personal prejudice or bias of the perpetrator. This article examines the laws that were historically used by the American federal government to prosecute hate crimes prior to the passing of a federal hate-crime law. Within the American federal system, the prosecution of crimes is largely left to states that comprise the federation. In the nineteenth century, however, the recalcitrance of states to prosecute racially-motivated hate crimes led to the passing of numerous federal-criminal civil-rights laws which permitted greater federal intervention in the investigation and prosecution of such crimes. Despite the laudable intentions underpinning the enactment of federal-criminal civil-rights laws, these laws were costly to implement and poorly interpreted by the courts. The Civil Rights Act of 1968 which was passed after the Civil-Rights Movement allowed for greater federal intervention in the investigation and prosecution of hate crimes at state and local level. However, the Civil Rights Act of 1968 contained burdensome evidentiary requirements which placed the onus on the prosecution to prove that the victim had been engaged in a federally-protected activity and that the victim's federal rights had been interfered with. It was only in the twenty first century, after the perpetration of two brutal hate crimes that a federal hate-crime law was passed by the American Congress. The Matthew Shepard and James Byrd Junior Hate Crimes Prevention Act of 2009 has facilitated the federal prosecution of hate crimes by removing the evidentiary burdens of the earlier laws and by allowing for increased federal funding and assistance in the investigation and prosecution of hate crimes. <![CDATA[<b>Rape and infidelity: threats to the athenian </b><b><i>Πόλις </i>and <i>Οίκος</i></b>]]> In terms of sexually motivated transgressions, adultery is viewed by many modern Western legal systems as a matter dealt with only in the intimate realm of those entangled and subsequently attaches little legal consequence to its occurrence. Rape, on the other hand, is regarded as a heinous crime (and rightly so) for which severe punishment for transgressors awaits. Conversely, ancient Athenian law demonstrated a notable distaste for adultery, so much so that affairs involving a male citizen's wife, or any other woman under his οίκος, constituted a crime and, by law, transgressors could be killed immediately by an affected male party if caught in flagrante. Committing rape, however, was not as severely punished as a rapist could only receive the death penalty in the event that he was so prosecuted by the Athenian judiciary consisting solely of male citizens. Under this ancient Athenian precedent, a victim of rape - a woman who was forced to have sexual intercourse - was, legally speaking, thought to suffer less than a woman who was seduced reflecting Athens' prejudicial social-legal view of women. Moreover, this view must be seen against the background of the threat of insecurity to the patriarch's οίκος (that is, his household including his estate and, by extension, the members of his household that formed part of that estate) that the adulterous woman posed as well as the all-male Athenian judiciary whose members themselves were members of an ο κος and, in most cases, were no doubt at its head. <![CDATA[<b>Primitive prohibition of direct representation in Roman law scholarship</b>: <b>origins, sources and flaws</b>]]> Roman law scholars since the nineteenth century have claimed that Roman law originally banned any form of direct representation, and that only through juristic innovations was this general prohibition of the ius civile partially overcome. Such theory was built on the assumption that some texts found in classical jurisprudence were manifestations of a general principle that inspired early Roman law. However, modern scholars have discarded many of the assumptions on which this theory was built, granting a much more limited scope to the texts which restrict the possibility to act on behalf of someone else. Moreover, the sources show that early legal institutions did not exclude agency-like figures, and that Roman jurists resorted to different criteria to determine whether the principal was affected by his agent depending on the particular legal act that was performed, for example the conclusion of a contract, the transfer of ownership, payment, acquisition of possession, etcetera. Accordingly, legal historians should avoid approaching the Roman sources through the notion of "direct representation". A piece-meal approach serves to understand when and under which conditions Roman jurists enabled an agent to affect the legal position of the dominus negotii. <![CDATA[<b>The doctrine of occupation and the founding of Australia</b>]]> There is certainly nothing surprising in the thesis that many legal doctrines, however complex or sophisticated they could be, are quite often difficult to apply directly. This problem occurs both in domestic and in international law. Traditionally considered modes of acquiring the territory of a state, mostly derived by modern scholars from Roman private law, make for a good example of this problem. It rarely happens that any of them provides a complete answer to the question of how a state acquired its legal title to a certain portion of land, especially when the title is contested. Scholars tend to emphasise that the modes of acquisition typified in textbooks of international law do not exactly reflect the complex process that occurs when a tribunal or an arbitrator has to adjudicate between competing claims. Yet, particularly where no dispute occurs, there are certain situations when some of the modes of acquiring state territory appear in pure form. Such is the case of Australia and the creation of a legal title to the vast territory of this continent by Great Britain. The goal of this paper is therefore to look at the beginnings of Australia through the prism of the doctrine of occupation, which has found direct application in this case. <![CDATA[<b>Execution against a debtor's home in terms of Roman-Dutch law and the contemporary South African law: comparative observations</b>]]> Relatively recently, fundamental changes, not only in the law, but also in policy and judicial approach, have occurred in the context of debt enforcement by execution against a debtor's home. These have been the product of the recognition of the right to have access to adequate housing, provided by section 26 of the Constitution of the Republic of South Africa, 1996, and the regulation by the National Credit Act 34 of 2005 of debt enforcement procedures against consumers in credit transactions, including mortgage bond agreements. South African common law principles applicable to mortgage bonds and applicable in the context of execution against a mortgagor's immovable property that constitutes his or her home, are rooted in Roman-Dutch law. Certain Roman-Dutch procedural rules and practices may be identified as having generally tended towards affording a measure of protection for the home of a debtor against execution by a creditor. These were rules which, for example, encouraged extra-judicial settlement negotiations and required personal service of summonses, four defaults before default judgment could be obtained in respect of a claim involving immovable property, and a more protracted procedure for execution against immovable, as opposed to movable, property. Exacting requirements were also imposed in order to maximise the price obtained at a judicial sale of immovable property. The same procedural rules and practices were not evident in the pre-Bill of Rights South African law. However, they may be viewed as being more in line with contemporary, constitutional imperatives, as well as law reform initiatives, to balance the various rights applicable in the context of execution against a debtor's home and to ensure that execution against a debtor's home may occur only as a last resort, where there are no alternative means by which the debt may be satisfied. <![CDATA[<b><i>Brown v Leyds NO </i>(1897) 4 or 17: a constitutional drama in four acts. Act two: the 1858 ZAR constitution, malleable instrument of Transvaal <i>Realpolitik </i>(1859-1881)</b>]]> This is the second in a series of articles on the historical and jurisprudential background to the well-known case of Brown v Leyds NO (1897) 4 OR 17, central to Chief Justice Kotzé's interpretation of the provisions for law-making in the 1858 Grondwet (Constitution) of the Zuid-Afrikaansche Republiek. This article traces the subsequent history of the Grondwet against the background of the socio-political turmoil in which the Republic was engulfed, the annexation of the Transvaal in 1877 and the restoration of the Republic in 1881. It describes the Volksraad's readiness to amend the Grondwet from time to time, on matters big and small, and to adopt a somewhat laizzes faire attitude to the manner in which the Grondwet was amended. The manner in which the Volksraad made laws, either by means of the constitutionally-prescribed legislative process or by means of resolutions - an issue that became severely contentious in later years - is discussed and analysed. Also discussed is the uneasy relationship between the sovereign authority of the volk, the supreme authority of the Volksraad and the executive authority of the state president. It was the inability of both President Pretorius and President Burgers to fully appreciate the centrality of the Volksraad's supreme authority in the Republican constitutional dispensation that led to their political demise. A final section examines the rise to political prominence of Paul Kruger (emphasising his obedience to the sovereign voice of the people as the voice of God) and of John Kotzé (emphasising judicial independence and integrity), against the backdrop of the annexation of the Transvaal by Great Britain and the successful war for independence fought by the Boers. This background is important for an understanding of the approaches adopted by Kruger and Kotzé in the later constitutional crisis they became embroiled in. <![CDATA[<b>Judge John Holland and the Vice-Admiralty Court of the Cape of Good Hope, 1797-1803: some introductory and biographical notes (part 1)</b>]]> A British Vice-Admiralty Court operated at the Cape of Good Hope from 1797 until 1803. It determined both Prize causes and (a few) Instance causes. This Court, headed by a single judge, should be distinguished from the ad hoc Piracy Court, comprised of seven members of which the Admiralty judge was one, which sat twice during this period, and also from the occasional naval courts martial which were called at the Cape. The Vice-Admiralty Court's judge, John Holland, and its main officials and practitioners were sent out from Britain. <![CDATA[<b>János Jusztinger <i>A vételár az ókori római adásvételnél -Price in the Ancient Roman Sale</i></b>]]> A British Vice-Admiralty Court operated at the Cape of Good Hope from 1797 until 1803. It determined both Prize causes and (a few) Instance causes. This Court, headed by a single judge, should be distinguished from the ad hoc Piracy Court, comprised of seven members of which the Admiralty judge was one, which sat twice during this period, and also from the occasional naval courts martial which were called at the Cape. The Vice-Admiralty Court's judge, John Holland, and its main officials and practitioners were sent out from Britain.