South African law journal最新文献_第3页

Book Review: Paul O’Connell & Umut Özsu (eds) Research Handbook on Law and Marxism (2021) 书评:Paul O 'Connell & Umut Özsu(编辑)法律与马克思主义研究手册(2021)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a9

D. M. Davis

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Dolus eventualis: An endangered colonial species 黄菖蒲:一种濒临灭绝的殖民地物种

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i2a1

T. Mosaka

{"title":"Dolus eventualis: An endangered colonial species","authors":"T. Mosaka","doi":"10.47348/salj/v140/i2a1","DOIUrl":"https://doi.org/10.47348/salj/v140/i2a1","url":null,"abstract":"This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Book Review: Mervyn Dendy & Cheryl Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa (2021) 书评:默文·邓迪&;Cheryl Loots Herbstein和Van Winsen:南非高等法院的民事实践(2021)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a9

Mohamed Paleker

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Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade 习惯国际法是南非的法律-现在怎么办?分析过去十年来法院对习惯国际法的认定和适用

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a4

Andreas Coutsoudis

{"title":"Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade","authors":"Andreas Coutsoudis","doi":"10.47348/salj/v140/i1a4","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a4","url":null,"abstract":"Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Property and access: Inequality of land relations and the continued vulnerability of women 财产和使用权:土地关系的不平等和妇女的持续脆弱性

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i2a6

Z. T. Boggenpoel

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Book Review: André du Toit Amnesty Chronicles: The Inner History of the Amnesty Negotiations During the South African Transition, and the Origins of the TRC’s Amnesty Process (2022) 书评:《大赦编年史:南非过渡时期大赦谈判的内史，以及TRC大赦进程的起源》(2022)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a10

Jaco Barnard-Naudé

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Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’ 传统价值的保存与-à-vis受养人在习惯法中因失去赡养而提起的诉讼- ' go tsoša/tsosa hlogo '

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a7

Matshilane Mokotong

{"title":"Conservation of traditional values vis-à-vis the dependant’s action for loss of support in customary law — ‘go tsoša/tsosa hlogo’","authors":"Matshilane Mokotong","doi":"10.47348/salj/v140/i4a7","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a7","url":null,"abstract":"In light of the widespread loss and endangered future of indigenous knowledge, there is a need to preserve traditional practices, values and rules relating to the dependant’s action for loss of support in African customary law (‘ACL’). Literature on the dependant’s action generally fails to mention the presence or absence of traditional practices relating to the dependant’s action for loss of support in ACL. Instead, existing research focuses almost exclusively on Western common law despite South Africa being a pluralistic society. This scholarly literature gap may encourage the standard view or tacit belief that traditional values applying to the dependant’s action do not exist in ACL. This article documents these traditional values in our legal system, thereby contributing to ongoing intellectual and political debates about protecting indigenous knowledge and cultural practices. The article discusses the dependant’s action for loss of support from an African perspective and compares it to the Western perspective. The effectiveness of traditional rules in the assessment of compensation is evaluated. The article proposes that the knowledge, understanding and integration of traditional values could result in the development of a single dependant’s action tailored to satisfy different cultures and beliefs and applies fairly and consistently to all.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Notes: Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce 注:先见之明的先例:PAF v SCF (SCA)和测试信托是否被滥用来操纵配偶离婚时的应计(或再分配)责任的新范式

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i4a1

Bradley S Smith

{"title":"Notes: Prescient precedent: PAF v SCF (SCA) and a new paradigm for testing whether a trust has been abused to manipulate a spouse’s accrual (or redistribution) liability at divorce","authors":"Bradley S Smith","doi":"10.47348/salj/v140/i4a1","DOIUrl":"https://doi.org/10.47348/salj/v140/i4a1","url":null,"abstract":"In this note, I argue that PAF v SCF 2022 (6) SA 162 (SCA) is a groundbreaking judgment for curbing the abuse of the trust form by spouses who are married out of community of property and who engage in unscrupulous ‘divorce planning’ aimed at manipulating their personal estate values for the purposes of dividing matrimonial property at divorce. PAF not only removes several uncertainties regarding our courts’ ability to pierce the veneer of an abused trust but also broadens our conventional understanding of what trust-form abuse entails in the divorce setting, particularly by virtue of its engagement with the SCA’s earlier (prescient) judgment in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA). In the process, I argue that there is a need to reconsider the test formulated in REM v VM 2017 (3) SA 371 (SCA) for taking the asset value of an alter-ego trust into account for accrual claims at divorce. I further assert that the new paradigm PAF ushers in requires formulating a consolidated test that takes into account this reconsideration, as well as the novel factual matrix in PAF. I conclude that this consolidated test is not only capable of being applied in the context of accrual liability, but also where a spouse is eligible to seek a redistribution order in terms of s 7 of the Divorce Act.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135447223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Book Review: Tjakie Naudé & Daniel Visser (eds) The Future of the Law of Contract: Essays in Honour of Dale Hutchison (2021) 书评:Tjakie naud<s:1> & Daniel Visser(编)《契约法的未来:纪念Dale Hutchison的随笔》(2021)

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a10

G. Lubbe

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Intervention in South African municipalities: Dangers and remedies 南非市政当局的干预:危险和补救办法

South African law journal Pub Date : 2023-01-01 DOI: 10.47348/salj/v140/i1a5

V. Bronstein, Daryl J. Glaser

{"title":"Intervention in South African municipalities: Dangers and remedies","authors":"V. Bronstein, Daryl J. Glaser","doi":"10.47348/salj/v140/i1a5","DOIUrl":"https://doi.org/10.47348/salj/v140/i1a5","url":null,"abstract":"South Africa’s Constitution guarantees municipal autonomy; at the same time it enjoins the different elements of the state to co-ordinate their efforts through ‘co-operative government’ and, in conjunction with legislation, it under some circumstances permits (or even requires) provincial and national government to intervene in local government affairs to secure effective government and oversight. These powers of intervention, justified by reference to s 139 of the Constitution, range from disciplining errant councillors to the forced dissolution of non-performing municipalities. Some welcome such intervention as a counterweight to local-level corruption and inefficiency, but in a partisan environment, especially where different spheres are controlled by different parties or coalitions accountable to distinctive electorates, these powers of intervention are, we argue, open to political abuse. This abuse is likely to become more prevalent as unstable local coalition governments become more common, providing more pretexts for intervention and opportunities for councillors in political minorities to subvert their own councils in the hope of inviting intervention by higher-tier actors associated with their own party. In line with the 2021 Constitutional Court case censuring the dissolution of Tshwane Municipality by the Gauteng government, we argue for restricting grounds for intervention, especially more radical forms of intervention. As far as possible, the task of removing corrupt and inefficient local councils and councillors should be left to local voters.","PeriodicalId":39313,"journal":{"name":"South African law journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70823754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0