Private Ordering and Dispute Resolution

by | Sep 6, 2019 | SALJ V135 I2 2018

Private Ordering and Dispute Resolution

Authors Andrew Hutchison, Alan Rycroft, Michelle Porter-Wright

ISSN: 1996-2177
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town; Professor in the Department of Commercial Law, University of Cape Town; Director, Allen & Overy, South Africa
Source: South African Law Journal, Volume 135 Number 2, p. 324 – 350

Abstract

In this article, we discuss the current state of Alternative Dispute Resolution (‘ADR’) law, practice and education in South Africa, with a particular focus on the potential role for mediation in commercial disputes. Our angle is to frame the material with a discussion of economic and contract theory, particularly that on private ordering and relational contracting. We link this socio-legal theory to more specific theory on ADR itself, and then contextualise ADR in South Africa. We discuss the role of ADR in commercial practice generally and provide a detailed account of the South African construction industry specifically. Our major conclusion is that ADR is often the most appropriate form of dispute resolution, particularly where social capital is at stake. This provides the link between ADR theory and private ordering/relational theory. Another important conclusion is that South Africa needs more specialist mediators, as well as a legal and political environment which incentivises such training.

Of ‘Deconstruction’ and ‘Destruction’ – Why Critical Legal Theory Cannot be the Cornerstone of the LLB Curriculum

by | Sep 6, 2019 | SALJ V135 I2 2018

Of ‘Deconstruction’ and ‘Destruction’ – Why Critical Legal Theory Cannot be the Cornerstone of the LLB Curriculum

Authors Willem H Gravett

ISSN: 1996-2177
Affiliations: BLC LLB (UP) LLM (Notre Dame) LLD (UP). Member of the New York State Bar
Source: South African Law Journal, Volume 135 Number 2, p. 285 – 323

Abstract

My purpose is to shine a light on recent South African critical-theory scholarship arguing for critical legal theory to become the ‘substantive pillar’ of legal education. However, the radical political agenda of the South African critical theorists is only superficially directed at the LLB curriculum. Their true ambition is revolution, not reform. They not only aim at the ‘deconstruction’ of the South African legal system, but at its ‘destruction’. The central themes of their critical theory are that law is an instrument of social, economic and political domination, that legal outcomes are the arbitrary whim or political bias of decision-makers, and that ‘rights’ –; especially fundamental human rights –; are impotent to address social problems. The South African critical theorists seek to excise the traditional conception of ‘the law’ from the LLB curriculum, and to recast law as a humanities discipline. However, their proposal for a ‘critical’ LLB curriculum suffers from two insurmountable flaws, namely (i) the explicit rationalisation of negative critique as the appropriate route in legal education, and the consequent failure to develop –; or even portend a blueprint of –; a positive programme for the integration of legal theory and social movement; and (ii) their critique of fundamental human rights, which would guarantee that vulnerable groups would lose all the gains that they have made in a liberal constitutional democracy, and, consequently, that these groups would be at exponentially greater risk of prejudice. Most significantly for the future of the university law school, the South African critical theorists’ message is exceptionally damaging to law students.

The Moral and Legal Foundations of Fair-labelling in Our Criminal Law

by | Sep 6, 2019 | SALJ V135 I2 2018

The Moral and Legal Foundations of Fair-labelling in Our Criminal Law

Authors Khomotso Moshikaro

ISSN: 1996-2177
Affiliations: Lecturer in Private Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 2, p. 262 – 284

Abstract

The aims of this article are threefold. The first is to justify why the specific moral wrongfulness of a crime must be reflected in the taxonomy of offences and the particular requirements of an offence in our criminal law. We call this the principle of fair-labelling. This can only be done once we appreciate the reputational interest at stake in such matters. The second is to explain an accurate conception of the separation-of-powers concern when judges are vested with the potential power to reframe offences in order to protect this reputational interest. The third is to identify the correct legal norm in which to ground fair-labelling for effective legal enforcement. In doing so, we see how misguidedly genuflecting to particular popular norms in our jurisprudence serves only to obscure the proper grounding of fair-labelling.