Abstract

Personality infringements through social media are not uncommon. Although many personality infringements can be linked to linguistics, given the fact that they take place in the form of written or spoken utterances, linguistic perspectives and theories are not commonly used to analyse evidence in possible personality infringement cases. This contribution aims to illustrate how linguistic theories can add value to the analysis of evidence in some personality infringement cases by investigating the word “fagott” and the potential reasons why it was misread as “faggot” in a given instance. The likeliness of one word being misread as another (and the implications thereof) is explored through pragmatic and psycholinguistic theories and is set against the backdrop of the law of personality. Data collected from English corpora complement the theories and help to illuminate why one word could be mistaken for the other. The article concludes that the linguistic evidence may be a valuable aid in determining whether personality infringements have taken place.

Abstract

It may seem axiomatic that the Constitution of the Republic of South Africa, 1996 imposes a general duty on public functionaries to investigate and remedy potential state impropriety, such as corruption, committed within the state. Public functionaries are, after all, supposed to be accountable to the public, and are enjoined by the Constitution to uphold and protect the rule of law. However, conflicting Constitutional Court jurisprudence gives rise to legal uncertainty about the existence of a general constitutional duty to investigate and remedy impropriety. This article explores whether public functionaries are obliged – as a matter of constitutional law – to respond when they become aware of actual or probable state impropriety. First, we argue that investigations have instrumental value, align with constitutional imperatives, and are mandated by relevant provisions of the Constitution. Secondly, we deduce that the overriding position emerging from the Constitutional Court’s decisions on the obligations of state functionaries constitutes judicial recognition of a general duty to investigate and remedy potential state impropriety. Finally, we conclude that to advance the rule of law, amongst other values of South Africa’s constitutional order, the legal position should be clarified in future jurisprudence and through legislative intervention.

Abstract

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights.

Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful.

Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts.

This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.

Abstract

The traditional focus of both legal practice and legal education is on the substantive and procedural law itself, and how it applies to a set of facts presented. This the practitioner or law lecturer commonly calls “the case”: whether it be a real-life case in legal practice, a decided case in the law reports, or a hypothetical case presented to students in a problem-solving exercise. What is frequently overlooked or under-emphasised is that there are people behind every case, who bring into the lawyer-client relationship their own peculiar history, personality, hopes, fears, economic realities, home and work contexts, and much more; and that these personal factors often impact significantly on the issues, both legal and non-legal, that are presented by the client to the lawyer. Indeed, these personal factors can have a significant bearing on how the lawyer advises and represents the client, and so to discount them could amount to a manifest disservice to the client.

This article considers in turn the interrelated concepts of preventative lawyering, therapeutic jurisprudence and relational lawyering, which have in common a recognition of the importance of giving attention to the human factor in context: to consider the need to counsel the client to optimise arrangements and minimise risk; to practise in a humane and empathetic manner, giving attention to psycho-social as well as legal issues, and with a view to promoting the general wellbeing of the client; to attend to building rapport and trust with the client in order to establish a mature professional relationship, with consequent improved outcomes for the client. The article also stresses the importance of educating law students and practitioners on the values and skills needed to promote these objectives, with a particular focus on the formation of professional identity.