Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Re-asserting the doctrinal legal research methodology in the South African academy: Navigating the maze

Author: Mkhululi Nyathi

ISSN: 1996-2177
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 140 Issue 2, p. 365-386
https://doi.org/10.47348/SALJ/v140/i2a5

Abstract

With the focus in the South African higher education landscape shifting towards research output, it is imperative that law schools equip postgraduate law students with proper legal research skills for them to carry out their legal research effectively. While the doctrinal legal research methodology has always been used in legal research and is well suited for the discipline of law, it has been subjected to serious criticism for some time, with some scholars labelling it as arrogant, non-objective and lacking in academic flair. Those who criticise the doctrinal legal research method tend to prescribe for the discipline of law research methodologies popular in other disciplines, such as the qualitative and quantitative methodologies that are popular in the social sciences. While a legal scholar doing interdisciplinary legal research is free to use such methodologies, these methodologies may not be suitable for classical legal research. The doctrinal legal research methodology remains the most appropriate methodology for legal research, as it is concerned with solving legal problems through the legal analysis of legal norms. The sources of legal norms are internally determined by the discipline itself and cannot be identified through qualitative and quantitative research.

Property and access: Inequality of land relations and the continued vulnerability of women

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Property and access: Inequality of land relations and the continued vulnerability of women

Author: Z T Boggenpoel

ISSN: 1996-2177
Affiliations: Professor in Private Law, Stellenbosch University
Source: South African Law Journal, Volume 140 Issue 2, p. 387-412
https://doi.org/10.47348/SALJ/v140/i2a6

Abstract

This article foregrounds the interplay between property and access from the perspective of those on the margins of property law, focusing specifically on women. The aim is to identify several instances where women are still in vulnerable positions despite a constitutional and/or legislative framework that purports to be progressive regarding gender equality and advancing women’s land rights. The article challenges the belief that individual wins in some court judgments are enough to proclaim the strengthening of women’s land rights. In this respect, it is important to consider whether a picture emerges that moves women away from the periphery towards the centre of property law.

Clarifying the constitutional status of the National Prosecuting Authority

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Clarifying the constitutional status of the National Prosecuting Authority

Author: Loammi Wolf

ISSN: 1996-2177
Affiliations: Research Associate, UFS Centre for Human Rights, University of the Free State
Source: South African Law Journal, Volume 140 Issue 2, p. 413-452
https://doi.org/10.47348/SALJ/v140/i2a7

Abstract

Chapter 8 of the Constitution aligns the status of the National Prosecuting Authority (‘NPA’) to the separation of powers typical for constitutional states where two principal organs developed in the third branch of state power during the midnineteenth century to refine Montesquieu’s model of separation of powers. The organs for the ‘administration of justice’ consist of the judiciary (adjudication) and prosecutors (prosecuting crime). Therefore, the status of the NPA entails both structural and functional independence from the executive. The reasons for the NPA’s failures are manifold and complex. The main reason is that the political elite continued to treat the NPA as a part of the executive branch, partly perpetuating the practice under the former Westminster constitutions and partly due to the ANC’s policy of ‘democratic centralism’. This has resulted in a chaotic state organisation of criminal justice where the powers allocated to prosecutors by s 179(2) are not clearly demarcated from policing powers under s 205(3) of the Constitution. For the proper functioning of the NPA to uphold the rule of law, it is important to delineate clearly the powers of the NPA from those of the judiciary, the executive — especially the Minister of Justice — the President, the police, and the watchdog functions of Chapter 9 institutions.

Book Review: David Cluxton Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions (2022)

by | May 6, 2023 | SALJ, SALJ V140 I2 2023

Book Review: David Cluxton Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions (2022)

Authors: William Kiema & Philippe-Joseph Salazar

ISSN: 1996-2177
Affiliations: University of Cape Town; University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 458-464
https://doi.org/10.47348/SALJ/v140/i2a9

Abstract

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