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Justice Froneman and Transformative Delict 正义前线与变革性犯罪

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16888

E. Zitzke

{"title":"Justice Froneman and Transformative Delict","authors":"E. Zitzke","doi":"10.17159/1727-3781/2024/v27i0a16888","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16888","url":null,"abstract":"In this article the Constitutional Court judgments of Justice Johan Froneman are analysed with the aim of assessing his contribution to the South African law of delict. It is argued that traditional delict scholarship in South Africa is common-law centric in the sense that the common-law rules and principles that regulate the discipline are regarded as \"delict proper\" while constitutional considerations, statutes, and the customary law of injuries are effectively side-lined as \"delict improper\". Justice Froneman's approach to adjudicating delictual (or delict adjacent) matters has the effect of de-centring the common law's hegemony in our discipline. Instead, Froneman encourages those who work with delict to: Infuse it with constitutional spirit continuously; respect the legislature's important democratic role that should not be forced into common-law categories of thinking; take up the challenge of Africanising the common law through a healthy exchange with customary law; and see delict as a discipline that has restorative-justice potential. In this contribution, it is argued that these common law de-centring principles in Justice Froneman's delictual jurisprudence is transformative and critical in nature. As such, those seeking to merge the basic tenets of transformative constitutionalism, South African critical legal studies, and legal practice, may find great value in Froneman's delictual jurisprudence.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"28 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141355711","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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Contract from the Margins: The Becoming of a Minor Jurisprudence in the Minority Judgment of Froneman, J in Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 5 SA 247 CC 来自边缘的合同：在 Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 5 SA 247 CC 一案中，Froneman 法官的少数派判决中的少数派判例的形成

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16893

J. Barnard-Naudé

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Judicial Collegiality and Tolerance of Difference: Insights from Justice Johan Froneman's Dissents 司法共事与容忍差异：从约翰-弗罗曼法官的异议中得到的启示

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16795

Felix Dube

{"title":"Judicial Collegiality and Tolerance of Difference: Insights from Justice Johan Froneman's Dissents","authors":"Felix Dube","doi":"10.17159/1727-3781/2024/v27i0a16795","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16795","url":null,"abstract":"The retirement of Justice Johan Froneman from the Constitutional Court of South Africa provides an ideal opportunity to reflect on his approach to collegiality and tolerance of difference. Like his predecessors, Justice Froneman navigated a delicate balance between collegiality and dissent. While the diverse backgrounds and experiences of his judicial colleagues enriched the Court's deliberations, Justice Froneman's dissents demonstrated the need for the Court to function as a cohesive unit to resolve judicial differences. His insistence on understanding the proper context of issues, taking account of relevant facts and synthesising opposite viewpoints was particularly pronounced in cases involving potentially divisive moral and ideological questions. Cases that touched on South Africa's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between collegiality and dissent, thereby showing that tensions between unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the development of the Court's jurisprudence on tolerance","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"46 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141355327","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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Inhabiting the Ruins of the City of Tshwane 居住在茨瓦内城的废墟上

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16945

Isolde de Villiers

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Compensation as Radical Transformation 补偿即彻底变革

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16796

Matthew Kruger

{"title":"Compensation as Radical Transformation","authors":"Matthew Kruger","doi":"10.17159/1727-3781/2024/v27i0a16796","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a16796","url":null,"abstract":"This paper draws on the concurring judgment of Froneman J in Agri SA to articulate a \"new and fresh approach\" to the power to expropriate and duty to compensate in section 25 of the Constitution. In Agri SA, the Constitutional Court had to consider whether the provisions in the Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA) expropriated property and, if so, what form of compensation was required as a result. The answers that Froneman J provides, rooted in his conception of \"compensation in kind\", offer a framework to enable rational, purposive and wide-ranging transformation of property through legislation. Work, though, is needed to clarify the structure and implications of his approach. This paper provides that clarity.\u0000After an introduction, Part 2 unpacks the transformative, i.e., radical, nature of the change effected by the MPRDA, distinguishing it from reform. Armed with this distinction, it is argued that Froneman J's concepts of expropriation and compensation are rooted in a practical concern for: (a) the good and bad forms of being that Parliament wanted to facilitate and frustrate by way of the MPRDA; (b) the relations constitutive of these forms; and (c) the property that is needed to facilitate or frustrate the relations and forms. Part 3 clarifies the nature of Froneman's approach, by focusing on s 25(3) of the Constitution of the Republic of South Africa, 1996, demonstrating that the factors it lists are concerned with maximally facilitating old and new goods, whilst always conscious of the fact that transformation by nature cannot avoid the need to sacrifice some goods for the sake of others. Part 4 offers some concluding thoughts.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"19 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141357282","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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Going Against the Grain – Justice Froneman as Subversive (Legal) Historian 逆流而上--弗罗曼大法官作为颠覆性（法律）历史学家

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16936

K. van Marle

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Tribute to Johan Froneman 向约翰-弗罗曼致敬

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a17836

Edwin Cameron

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Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd: Johan Froneman, the Transformation of Property Law and the Virtue of Small Things Bengwenyama Minerals (Pty) Ltd 诉 Genorah Resources (Pty) Ltd：Johan Froneman、财产法的变革和小事的美德

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a16938

Danie Brand

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Editorial: Artifacts of judging: Justice Johan Froneman 社论：审判的人工制品：约翰-弗罗曼法官

Potchefstroom Electronic Law Journal Pub Date : 2024-06-11 DOI: 10.17159/1727-3781/2024/v27i0a17876

K. van Marle, Elmien Du Plessis

{"title":"Editorial: Artifacts of judging: Justice Johan Froneman","authors":"K. van Marle, Elmien Du Plessis","doi":"10.17159/1727-3781/2024/v27i0a17876","DOIUrl":"https://doi.org/10.17159/1727-3781/2024/v27i0a17876","url":null,"abstract":"Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the \"rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right\". He further argued for the Constitution \"to become … a living document\".\u0000In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman.\u0000Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal.\u0000In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.","PeriodicalId":55857,"journal":{"name":"Potchefstroom Electronic Law Journal","volume":"98 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141359263","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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The African Court's Jurisdiction over the "International" Eco-Crime of Trafficking in Hazardous Wastes: Challenges and Opportunities 非洲法院对贩运危险废物这一 "国际 "生态犯罪的管辖权：挑战与机遇

Potchefstroom Electronic Law Journal Pub Date : 2024-06-05 DOI: 10.17159/1727-3781/2024/v27i0a13517

Linda Mushoriwa

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