On the reciprocal relationship between the rule of law and civil society

by | Sep 25, 2019 | ACTA, ACTA 2015

On the reciprocal relationship between the rule of law and civil society

Authors Stu Woolman

ISSN: 1996-2088
Affiliations: Professor of Law and Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2015, p. 374 – 406

Abstract

And I’m driving a stolen car, down on Eldridge Avenue. Each night I wait to get caught, but I never do. She asked if I remembered the letters I wrote, when our love was young and bold. She said last night she read those letters: and they made her feel one hundred years old. I’m driving a stolen car, on a pitch black night, and I’m telling myself — I’m gonna be alright. But I ride by night, and I travel in fear, that in this darkness, I will disappear. Bruce Springsteen ‘Stolen Car’ The River

Can we discard the doctrine of legal guilt?

by | Sep 25, 2019 | ACTA, ACTA 2015

Can we discard the doctrine of legal guilt?

Authors Pamela-Jane Schwikkard

ISSN: 1996-2088
Affiliations: Dean of the Faculty of Law, University of Cape Town
Source: Acta Juridica, 2015, p. 360 – 373

Abstract

The doctrine of legal guilt enjoys little popular support and there are systemic breaches of this doctrine in the criminal justice system. These breaches only occasionally attract public approbation and due process is frequently blamed in both popular and political discourse for the government’s inability significantly to reduce South Africa’s high crime rate. I argue that despite the unpopularity of the doctrine it would be dangerous and futile to discard it for short-term political gains.

S v Williams: A springboard for further debate about corporal punishment

by | Sep 25, 2019 | ACTA, ACTA 2015

S v Williams: A springboard for further debate about corporal punishment

Authors Ann Skelton

ISSN: 1996-2088
Affiliations: Professor and Director of the Centre for Child Law, University of Pretoria
Source: Acta Juridica, 2015, p. 336 – 359

Abstract

In an early judgment of the Constitutional Court, S v Williams, Justice Langa found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and humane treatment. Former Chief Justice Langa was also a member of the unanimous court that found the law prohibiting corporal punishment in schools to be a reasonable and justifiable infringement of their parents’ right to religious freedom. However, s 12 of the South African Constitution guarantees everyone the right to be protected from all forms of violence, either from public or private sources. This contribution considers how the court might deal with a challenge to the constitutionality of the common-law defence of reasonable chastisement, which permits corporal punishment of children by their parents in their own homes.

State liability and accountability

by | Sep 25, 2019 | ACTA, ACTA 2015

State liability and accountability

Authors Alistair Price

ISSN: 1996-2088
Affiliations: Associate Professor, University of Cape Town; Advocate of the High Court of South Africa
Source: Acta Juridica, 2015, p. 313 – 335

Abstract

This contribution examines the relationship between two intersecting themes in Chief Justice Langa’s judgments: the need to hold the state accountable for its wrongdoing and the need to hold the state liable to pay a monetary sum to a victim of its wrongdoing. I argue that accountability is promoted by requiring the state to explain or to justify its actions and by holding it responsible for its actions. Responsibility for wrongdoing may and should take a variety of forms, both legal and political. Legal liability to pay money is but one of these. There are at least four distinct grounds to hold the state liable in South African law. Our courts have relied most heavily on one of these routes, namely the law of delict. Although in principle this is welcome, in future further attention should be given to the possibility that awarding ‘public law’ compensation as an alternative, whether constitutional damages or an award grounded in administrative law, may on occasion be a better means to hold the state accountable for failures to perform its distinctive obligations.

Contractual obligation and the journey from natural law to constitutional law

by | Sep 25, 2019 | ACTA, ACTA 2015

Contractual obligation and the journey from natural law to constitutional law

Authors François du Bois

ISSN: 1996-2088
Affiliations: Professor of Law and Head of School, University of Leicester; Honorary Research Associate, University of Cape Town
Source: Acta Juridica, 2015, p. 281 – 312

Abstract

The bold promise of the Constitutional Court’s first foray into the field of contract law during Langa CJ’s leadership remains unfulfilled. This paper takes issue with both the Supreme Court of Appeal’s reticent reaction to Barkhuizen v Napier and commentators’ criticism of the CC’s preference for indirect horizontal application of the Bill of Rights. Proposing an expansive understanding of the reach and force of indirect horizontal application, it argues that the Bill of Rights requires a new, constitutionally-informed, conception of the normative foundations of contractual obligation in place of the natural law approach of the Roman-Dutch tradition as articulated by Grotius. Such a conception does not treat the enforcement of contracts as tantamount to enforcing a duty to keep one’s word, a duty of virtue, but as supporting the consensual creation and vindication of interpersonal rights when it is in the public interest to do so. The SCA’s continued rejection of good faith, fairness and reasonableness as principles on which parties and courts can rely directly, as opposed to abstract values underlying operational rules and principles, are shown to rest on a conception of contractual obligation that is incompatible with the constitutionalisation of South African law.