Scielo RSS <![CDATA[Fundamina ]]> vol. 19 num. 2 lang. en <![CDATA[SciELO Logo]]> <![CDATA[<b>Laws on adultery: comparing the historical development of South African common-law principles with those in English law</b>]]> The article sets out the historical development of the legal consequences of adultery in South African and English law. Changes to the legal approach towards adultery took the form of a three-stage process: private self-help measures gave way to public criminal prosecutions, which in turn made way for a private claim for damages. In addition, the developments moved from being particularly harsh towards women, especially married women, to being completely gender-neutral. The article also tracks the legal relevance of adultery to the divorce laws. The direct links between the adultery and the divorce action as well as the prosecution and later the damages claim are noted. The article also records the ability of adulterers to eventually marry each other. The developments in the jurisprudence are explained chronologically, commencing with the development of Roman law through canon and Roman-Dutch law, and culminating in the existing South African legal system. This progression is compared to relevant historical developments in English law, commencing with observations made by Julius Caesar in 54 BC, and going up to current English law. <![CDATA[<b>The elegant but indefinable legal art</b>]]> According to Ulpian the jurist Celsus defines ius as the ars boni et cequi and does this eleganter. There is no doubt about the elegantia of this assertion nor that ius is an ars. But this cannot be regarded as a definition. After analysing the meaning of words such as "elegantia", "elegans" and "eleganter" in the Roman legal texts and focusing the art of dealing with ius, this paper confronts the hard task of defining it. <![CDATA[<b>A historical perspective on the recognition of same-sex unions in South Africa</b>]]> In pre-1994 South Africa the discourse on sexuality was rigidly controlled by apartheid and a distinct bias in favour of a certain brand of Christianity. Based on the concept of marriage as defined in Christendom, any kind of recognition of same-sex unions was prohibited in South Africa, and sexual relations between persons of the same-sex were characterised as deviant and criminal behaviour. With the abolition of apartheid and the establishment of a new constitutional dispensation based on the values of equality, human dignity and freedom, discrimination against homosexuals was officially relegated to the past. The relegation is attributed to the political alliances formed between minority and marginalised members of our society. Political alliances inevitably led to the acceptance in the South African Constitution, 1996, that discrimination on the ground of sexual orientation would automatically be unfair until proven otherwise. This constitutional commitment led to various piecemeal legislative and judicial developments after 1994, when the recognition and protection of same-sex life partnerships have been at issue. The Constitutional Court declared the common-law definition of marriage to be inconsistent with the Constitution and as a result the Civil Union Act 17 of 2006 was enacted to govern same-sex marriage. This article demonstrates how same-sex couples are made to feel like outsiders due to certain legal provisions, and that the guarantee of democratic tolerance for all South Africans still remains somewhat illusory. <![CDATA[<b>Fundamental principles of law and justice in the opening title of Johannes Voet's <i>Commentarius ad Pandectas</i></b>]]> Johannes Voet's Commentarius ad Pandectas, the leading institutional work in Roman-Dutch law, is also the most frequently quoted exposition of that legal system in the South African courts. The opening title of that magisterial work, however, has for the most part been unjustly neglected by our judges, scholars and law teachers alike. Apart from providing an exceptionally fine introduction to the elements of law and justice, this title reveals the imposing range of Voet's scholarship, which sweeps within its compass many ancient writings. I argue that South Africa's constitutional jurisprudence in its present state is solely in need of the nourishment and healing which the fundamental principles of natural law and justice expounded by Voet are amply capable of providing. In this article, I attempt a close reading of Commentarius 1 1, in order to shed light on these key principles. In conclusion, I submit that this rich repository of principle merits far closer judicial and juristic attention than it has received in this country until now. <![CDATA[<b>Circuit courts in the Cape Colony during the nineteenth century: hazards and achievements</b>]]> The circuit courts established by the Earl of Caledon in 1811 introduced the fundamental features characteristic of proceedings at common law to the Cape and thus constitute an important precursor to the Charters of Justice of 1827 and 1832. They also paved the way for the circuit courts established in 1827 under the First Charter of Justice, the predecessors of the circuit courts which to this day form part of the legal landscape in South Africa. During the nineteenth century, judges of the Cape Supreme Court regularly visited outlying towns and districts to hear both civil and criminal cases. The circuits lasted for weeks and long distances were travelled under primitive and hazardous conditions. The judges and counsel often had to endure great physical hardship. They all stuck to their task with commendable tenacity and perseverance. In the circumstances, the contribution of the Cape judges to the development of South African law and to the survival of the Roman-Dutch law was a remarkable achievement. The circuit courts brought to the outlying districts the administration of justice at the highest level. The sittings of the courts were open to the public, and the community participated in the proceedings by way of jury service. All this contributed to the integration of the administration of justice into the social fabric and "judicial conscience" of the people in the outlying communities. The circuit courts played a major role in entrenching the English procedural and judicial style in the minds of the people, and in bringing home the message that the courts were open to all the people of the colony, and that the protection of the courts extended to all of them. <![CDATA[<b>Public policy: the origin of a general clause in the South African law of contract</b>]]> The article relates how the Constitutional Court has chosen public policy as the general clause with which to combat unfairness in contracting. Consequently the historical development of public policy is investigated in the footsteps of Wessels, who was the first South African author to address the role of public policy in the law of contract in a wider sense. The historical sources on contracts in restraint of marriage, marriage brokerage contracts, usurious contracts, contracts in restraint of trade and wagering contracts are analysed with regard to public policy. Although some Roman-law and Roman-Dutch authority can be found in certain instances, the main observation is that public policy and boni mores have not been clearly distinguished by modern writers dealing with these jurisdictions. The conclusion of the paper is that public policy as an open norm is an English transplant. <![CDATA[<b>The nature of the crime of arson in South African law</b>]]> The crime of arson is committed in a number of different ways in the South African context. However, what is common to all incidences of the crime is that it causes danger: either to property or persons or both. Although the crime is traditionally classified as a crime against property, this article points out that it has been recognised, in the common-law sources upon which the crime is based, that the crime also protects the community. In this regard the use of the crime to punish the fire-setter who sets his or her own property alight, foreseeing that the fire may endanger the interests of others, is highlighted. This aspect of the crime derives from common-law sources, and has been recognised in the courts, but as yet has been sporadically acknowledged and applied by academic writers and in practice. It is submitted that such intentional conduct ought to be reflected in the definition of arson. <![CDATA[<b><i>L'état d'exception</i></b><b> and/or a state of siege: what is really wrong with section 9(2) of the Constitution of Cameroon?</b>]]> Section 9(2) of the Constitution of Cameroon relating to emergency regimes, in its French version provides for "l'état d'exception" whereas the English version of the same text provides for "a state of siege". In this paper I show that French and English being the official languages in Cameroon, the wording "l'état d'exception", which literally means "state of exception" in English, cannot be understood to be a state of siege which translated into genuine French would mean "l'état de siège". Whereas in l'état d'exception there is a concentration of power in the hands of the executive and the provisional abolition of the separation of legislative, executive and judicial powers, in a state of siege responsibility for during a crisis the security of the city is transferred from the administrative authorities to the army. The current provisions of section 9(2) of the Constitution of Cameroon are confusing and I therefore examine the fundamental differences between the two emergency institutions from legal and historical perspectives. I emphasise the impact of such confusion on human rights and the rule of law in Cameroon. In essence, I demonstrate that "l'état d'exception" and "a state of siege" as currently defined by section 9(2), appear to be mechanisms allowing gross human rights violations and conferring comprehensive powers designed to paralyse the rule of law. <![CDATA[<b>The status of a bearer of rights within the European legal tradition: the tradition of Rome and Jerusalem - a case study</b>]]> The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition should be kept in mind when we discuss legal tradition. This article gives an example when discussing what Gottfried Wilhelm Leibniz called subiectum iuris (the subject of rights), namely the bearer of rights. The terms used to define a bearer of rights vary, sometimes descriptive or intuitive, at other times strictly technical. The experience of both Jerusalem and Rome leads to the question: "Who is my neighbour?" or "Who is my brother?" Although the phrasing of the fundamental and shared question proves that universalism may extend beyond one legal tradition, the answers to these questions are not unanimous. The basic yet difficult problem in any society is who may be considered a neighbour? The question of "brotherhood" boils down to "brotherhood" with whom? Who is one's neighbour? Every person? And who is a person: a slave, a foreigner, a pagan, a Samaritan, an immigrant, or an embryo? Whom do we consider to be persons in the pragmatism of social life? The answers to these questions determine both the respondent's and the legal order's level of humanity. <![CDATA[<b>The legal-historical context of urban forced evictions in South Africa</b>]]> The aim of this article is to place forced evictions in their legal-historical context by analysing the rural and urban land tenure measures used during apartheid to limit the nature and duration of black people's tenure. The hypothesis of this article is that the homelessness and extensive housing crisis in present-day South Africa have their origins in the apartheid era, when government's rural and urban land tenure measures, together with private owners' common-law remedies, led to large-scale forced evictions. A renewed appreciation of the legal-historical context of forced evictions should enable the courts to understand the social and historical context of section 26 of the Constitution of the Republic of South Africa, 1996 and the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 18 of 1998. This limited historical study places forced removals and the demolition of homes in the context of apartheid land law. The description and analysis of legislation and case law are limited to the period between 1913 when the Black Land Act was enacted and 1994 which marked the official end of apartheid. <![CDATA[<b><i>Amende honorable</i></b><b> and <i>ubuntu:</i> an intersection of <i>ars boni et aequi</i> in African and Roman-Dutch jurisprudence?</b>]]> Amende honorable is a defunct delictual remedy for defamation that originated in medieval canon law and became part of South African law through Roman-Dutch law. This remedy is aimed at restoring the dignity of the plaintiff by an apology from the defendant. It has fallen into disuse in South Africa, but recently, within the framework of restorative justice, South Africa's highest courts have reassessed the suitability of this remedy in restoring the dignity of the plaintiff by an apology from the defendant. Importantly, on various occasions they commented on its interrelation with the African principle of ubuntu which is regarded as a fundamental postulate of African customary law and in effect the foundation of restorative justice in African jurisprudence. In this article I address the suitability of any comparison of the equitable principles of Roman-Dutch law as expressed in the remedy of amende honorable and the equitable principles of African jurisprudence rooted in ubuntu. <![CDATA[<b>Content analysis: a new approach in the study of the old Babylonian family division agreement in a deceased estate</b>]]> The recorded family division agreement in a deceased estate encompasses a variety of components, mechanisms and details ranging from elementary to lengthy and complex ones. Moreover, the agreement is drafted in accordance with the contractual parties' particular oral agreement and the scribe's idiosyncratic inclusion of some of the detail of the oral agreement. A specific methodology is devised in order to analyse the content of the family deceased division agreements.Thus the aim and purpose of this content analysis methodology is to simplify the analysis of old Babylonian division agreements. In this article, special attention is accorded to the creation of a methodology, termed the analysis model, for the analysis and study of the content of family deceased division agreements. Within this framework, firstly the obligatory essential elements of a family deceased division agreement are identified and then other aspects and elements of the agreement are identified and studied in different groups, named the natural and incidental elements, to reflect new perspectives on the division agreement's meaning, purpose and spirit in ancient Babylonian urban life. <![CDATA[<b>Schoemansdal: law and justice on the frontier</b>]]> Schoemansdal in the Zoutpansberg district was a frontier town of the Zuid-Afrikaansche Republiek. Various causes contributed to its demise in the late 1860s, of which the special High Court sitting in June/July 1867 was certainly a major factor. To understand the events that unfolded at the High Court sitting, one has to have some knowledge of the background of the town, its surroundings and history, and the various personalities that played a role in the eventual trials. The events illustrate the gap that existed between the ideal state and the practical problems of a frontier town, and the resulting loss of rule of law. <![CDATA[<b>Conference of the Southern African Society of Legal Historians, 12-16 May, Kwa Maritane, South Africa</b>]]> Schoemansdal in the Zoutpansberg district was a frontier town of the Zuid-Afrikaansche Republiek. Various causes contributed to its demise in the late 1860s, of which the special High Court sitting in June/July 1867 was certainly a major factor. To understand the events that unfolded at the High Court sitting, one has to have some knowledge of the background of the town, its surroundings and history, and the various personalities that played a role in the eventual trials. The events illustrate the gap that existed between the ideal state and the practical problems of a frontier town, and the resulting loss of rule of law.