Scielo RSS <![CDATA[Fundamina ]]> http://www.scielo.org.za/rss.php?pid=1021-545X20190001&lang=en vol. 25 num. 1 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>"I also am a Barolong":<i> Re Bethell </i>and shaping of marriage law and conflict of laws doctrine</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100001&lng=en&nrm=iso&tlng=en Re Bethell was a judgement of the Chancery Division in London, decided in February 1888. The case considered the validity of the marriage between an English aristocrat and a Rolong woman concluded in terms of Rolong customary law. The judgement was enormously influential as the catalyst case that secured the "legal definition of marriage" as "the voluntary union for life of one man and one woman, to the exclusion of all others". The article looks in detail at the historical context of the Bethell case and argues that the ruling was influenced by a desire to protect the Bethell family's standing and reputation. The case can also be understood as a building block in the formation and consolidation of what would become the British Empire. Law was an important constituent element in the formation of Empire. Law was used to identify and legitimate colonial authority. Law created boundaries, both political and cultural. The article examines the Bethell case as an example of these dynamics. <![CDATA[<b>A bibliometric analysis of Schulz, Koschaker, Pringsheim, Wieacker and Coing</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100002&lng=en&nrm=iso&tlng=en This article uses citation analysis to track the citation patterns of works by Fritz Schulz, Paul Koschaker, Fritz Pringsheim, Franz Wieacker and Helmut Coing - key figures in the field of Roman law - and to see whether databases, such as Google Scholar and Web of Science, provide meaningful data that accurately reflects the popularity and influence of these works. The article also takes into account those limitations regarding the availability of the material, which include the language of the publications, as well as the research field. <![CDATA[<b>The power to remove company directors from office: historical and philosophical roots</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100003&lng=en&nrm=iso&tlng=en The Companies Act 71 of 2008 introduced into South African law a provision that, for the first time, empowers the board of directors to remove a director from office. This article contends that the novel power conferred on the board to remove a director from office represents a fundamental shift in the balance of power between shareholders and directors. This article traces the historical division of powers between the board and shareholders in South African law, as well as in the United Kingdom, Australia and the United States of America. It also explores the historical reasons and underpinning philosophy as to why the shareholders acting in a shareholders' meeting have been conferred the right, by means of an ordinary resolution, to remove directors from office in these jurisdictions. The article further explores the full implications of this new power granted under the Companies Act 71 of 2008. It is further significant that section 66(1) of the Companies Act 71 of 2008 represents the first instance in South Africa's company law history of statutorily conferring original powers of management on the board. It is argued that, despite the qualifications attached to it, this power of removal conferred on the board of directors has significantly shifted the balance of power and dynamics not only between the board of directors and the shareholders, but also between the shareholders themselves, and even between the directors inter se. Some suggestions are made with regard to containing the shift in the balance of power between directors and shareholders. <![CDATA[<b><i>Manci</i><i>pa</i><i>ti</i><i>o</i> by an agent and the<i> satisdatio </i>and <i>repromissio</i><i> secundum mancipium </i>as sureties for eviction</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100004&lng=en&nrm=iso&tlng=en The satisdatio secundum mancipium and the repromissio secundum mancipium were the first stipulations for eviction granted by the seller in Roman private law. The obscurity of the sources on the subject has given place to various theories concerning the exact role of these institutions. This article attempts to analyse the available evidence by revisiting the traditional idea of the impossibility of an agent to mancipate, concluding that the role of the satisdatio and repromissio secundum mancipium was to grant the buyer a surety against eviction when an agent mancipated on behalf of the owner. This role would better explain the features of these institutions compared to other mechanisms protecting the buyer, such as the stipulatio duplae and the exceptio rei venditae et traditae. The sources suggest that a need for such surety was triggered by the absence of responsibility for auctoritas following from a mancipatio by an agent. This surety has moreover left traces in Roman legal practice, which confirm the role of these stipulations and their practical importance. <![CDATA[<b>History of the dispossession of the rights in land of pastoral indigenous communities in the cape colony from 1652 to 1910</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100005&lng=en&nrm=iso&tlng=en The pastoral indigenous communities living in southern Africa at the start of the colonial period were the first to be dispossessed of their rights in land. They had exercised these rights in terms of their customary law systems for centuries before the arrival of non-indigenous settlers in 1652. During the nineteenth century, the final acts of dispossession of land took place in terms of racially discriminatory legislation and administrative actions, just like the dispossession of land that took place after 19 June 1913. However, the descendants of these communities are unable to claim restoration of their rights in land in terms of the constitutional land reform programme. This contribution identifies the customary law rights in land of these communities and compares such rights with the rights that non-indigenous settlers had in the land used as grazing on loan places. This comparison shows that the rights in land used as grazing of non-indigenous settlers and pastoral indigenous communities were in essence the same. However, from 1813 the colonial government implemented legislation in the Cape Colony that created big disparities with regard to rights in land between them. In this contribution, it is argued that colonial dispossession of land from pastoral indigenous communities should be rectified by adopting legislation in terms of section 25(8) of the Constitution that will enable the descendants of these communities to claim restoration of their ancestral land. <![CDATA[<b>The history and nature of the right to institute a private prosecution in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100006&lng=en&nrm=iso&tlng=en In 1828, legislation was enacted in South Africa to provide for the right to institute a private prosecution. Between 1828 and 1976, South African statutory law expressly provided that a victim of crime had a right to institute a private prosecution. However, this changed with the promulgation of the Criminal Procedure Act 51 of 1977. Section 7 of that Act provides for a list of people who may institute private prosecutions, but it does not expressly state that a victim of crime has such a right. Nevertheless, the courts have held that section 7 does provide for the right of a victim of crime to institute a private prosecution. The purposes of this article are manifold: to highlight the history of the right to institute a private prosecution in South Africa; to argue that although section 7 does not expressly provide for the right to institute a private prosecution, its drafting history could be relied on to contend for the existence of such right; to discuss the nature of the right to institute a private prosecution; to discuss the limitations on the right to institute a private prosecution; and to suggest ways in which this right may be strengthened. <![CDATA[<b>The basic tenets of intestate (customary) succession law in Ancient Egypt</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100007&lng=en&nrm=iso&tlng=en This article discusses the basic tenets of customary intestate succession law in ancient Egypt as one "branch" of succession law. It considers the initial role of religion in the emergence of succession law as background. It furthermore discusses the basic structure or order of inheritance from a legal perspective. An attempt is made to indicate that there was a structure followed which changed very little over time although the emphasis and connection with religion diminished. The position of descendants, ascendants, husband and wife and their legal relationship to the deceased is discussed against the backdrop of the nuclear family and the estate being treated as a res incorporalis. Consideration is given to elements of parentela and per stirps possibly present. The position of the eldest son as sole heir and "caretaker" is discussed. Ultimately the focus is on what we can learn about customary-intestate succession law in ancient Egypt from early texts in the Old Kingdom through to the New Kingdom. <![CDATA[<b>In Memoriam: Hans Ankum</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1021-545X2019000100008&lng=en&nrm=iso&tlng=en This article discusses the basic tenets of customary intestate succession law in ancient Egypt as one "branch" of succession law. It considers the initial role of religion in the emergence of succession law as background. It furthermore discusses the basic structure or order of inheritance from a legal perspective. An attempt is made to indicate that there was a structure followed which changed very little over time although the emphasis and connection with religion diminished. The position of descendants, ascendants, husband and wife and their legal relationship to the deceased is discussed against the backdrop of the nuclear family and the estate being treated as a res incorporalis. Consideration is given to elements of parentela and per stirps possibly present. The position of the eldest son as sole heir and "caretaker" is discussed. Ultimately the focus is on what we can learn about customary-intestate succession law in ancient Egypt from early texts in the Old Kingdom through to the New Kingdom.