The Covington smile: Norms and forms of violence in the age of the White Awakening

by | Nov 20, 2022 | ACTA, ACTA 2022

The Covington smile: Norms and forms of violence in the age of the White Awakening

Author Philippe-Joseph Salazar

ISSN: 1996-2088
Affiliations: Centre for Rhetoric Studies, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2022, p. 198 – 219
https://doi.org/10.47348/ACTA/2022/a9

Abstract

This essay is a detailed study of an event that took place in January 2019 in Washington DC on the steps of the Lincoln Memorial. It was a confrontation between Catholic schoolboys returning from a March for Life and mainly Native Americans led by an Omaha elder. The ‘faceoff’ between the two central protagonists, Nicholas Sandmann and Nathan Phillips, went viral as the embodiment and enactment of white racism. It occasioned massive lawsuits for defamation against major media corporations. By applying critical rhetoric, this essay intends to show that repressed forms and norms of rites, sacrifice and religious artefacts were re-activated and performed anew during this encounter.

Piercing incomprehensible power

by | Nov 20, 2022 | ACTA, ACTA 2022

Piercing incomprehensible power

Author Reingard Nethersole

ISSN: 1996-2088
Affiliations: Professor emerita of Comparative Literature, University of the Witwatersrand; Visiting scholar, University of Richmond, Virginia, USA
Source: Acta Juridica, 2022, p. 220 – 245
https://doi.org/10.47348/ACTA/2022/a10

Abstract

Demonstrating the inherent indiscernibility of political power, particularly in our post-tellurian, celestial epoch (Schmitt) of ‘postdemocracy’ (Ranciere), a focus on spaces and sites of power – in its dual characteristic of dominating, controlling as well as enabling force – illuminates historic changes that produced today’s technologically and pecuniary propelled ‘governance’ (Morozov). Dispensed by idola of the ‘marketplace and the theatre’ (Bacon) coursing through cyberspace, the muted demos is coaxed into accepting Silicon Valley’s promise of utopia unless forensic rhetoric pierces the broken connection between having power and exercising it deliberatively. That depends on the extent to which concealed places of power can be made comprehensible for the demos to withstand celestial seduction and regain her politically informed voice.

For Philippe: Sharing questions of unintelligibility, security and diversity — from Babel to Pentecost

by | Nov 20, 2022 | ACTA, ACTA 2022

For Philippe: Sharing questions of unintelligibility, security and diversity — from Babel to Pentecost

Author Dominique De Courcelles

ISSN: 1996-2088
Affiliations: Professor, Director of Research at the Paris Sciences Lettres University
Source: Acta Juridica, 2022, p. 246 – 256
https://doi.org/10.47348/ACTA/2022/a11

Abstract

And the whole earth was of one language, and of one speech. And it came to pass, as they journeyed east, that they found a plain in the land of Shinar; and they dwelt there. And they said one to another, Go to, let us make brick, and burn them thoroughly. And they had brick for stone, and slime had they for mortar. And they said, Go to, let us build us a city and a tower, whose top may reach unto heaven; and let us make us a name, lest we be scattered abroad upon the face of the whole earth. And the LORD came down to see the city and the tower, which the children of men builded. And the LORD said, Behold, the people is one, and they have all one language; and this they begin to do: and now nothing will be restrained from them, which they have imagined to do. Go to, let us go down, and there confound their language that they may not understand one another’s language. So the LORD scattered them abroad from thence upon the face of the earth: and they left off to build the city. Therefore is the name of it called Babel; because the LORD did there confound the language of all the earth: and from thence did the LORD scatter them abroad upon the face of all the earth. (Genesis 11, 1–9).

A South African Historico-Legal Perspective on Plagues and Pandemics

by | Nov 20, 2022 | FUND, FUND V28I1

A South African Historico-Legal Perspective on Plagues and Pandemics

Author Marita Carnelley

ISSN: 2411-7870
Affiliations: BA LLB (Stell) LLM (UNISA) PhD (Amsterdam). Professor, Faculty of Law, North-West University
Source: Fundamina, Volume 28 Issue 1, p. 1-65
https://doi.org/10.47348/FUND/v28/i1a1

Abstract

Global health experts have warned for decades of potential global influenza outbreaks. Although some strides have been made to mitigate the risks and consequences of a pandemic, concerns have been raised about the level of preparedness – both nationally and internationally. This contribution considers a number of plagues and pandemics that directly or indirectly played a role in the development of the South-African legal system, specifically the Justinian Plague, the Black Death, the Great Plague, the Third Bubonic Plague, the Spanish Flu and the Influenza Outbreaks of the past century. Each pandemic created legal and political challenges at the time that were dealt with in the context of the existing conceptions of social justice; this inevitably shaped the development of public health and disaster management jurisprudence and, in some instances, also contributed to the change in the underlying world order. This contribution aims to set out the legal development associated with pandemics that influenced the South African common-law legal system from Roman times until the end of 2019, just prior to the Covid-19 outbreak. There are two main parts to this contribution: The first deals with local or national activities at the time of the pandemic, while the second deals with later international law developments to address possible negative global consequences of such pandemics. The aim is thus, on the one hand, to detect themes from local or national responses to the social, cultural and economic costs of a pandemic, even though it is understood that the impact and consequences of plagues and pandemics are not identical. On the other hand, international law developments are discussed as these too had an impact on the South African legal framework and commitments. Although various aspects related to addressing the consequences of pandemics have improved – such as global surveillance, prevention and eventual control to decrease the incidence and severity of outbreaks – a historical assessment of these experiences is useful for evaluating the progress made towards preparedness at national and international levels. The contribution concludes with a short description of the South African legal framework in 2019 as it pertained to a potential pandemic outbreak.

Pathways To African Unification: The Four Riders of The Storm

by | Nov 20, 2022 | FUND, FUND V28I1

Pathways To African Unification: The Four Riders of The Storm

Author Kofi Oteng Kufuor

ISSN: 2411-7870
Affiliations: BA Hons (University of Science & Technology, Ghana) LLM (London School of Economics) PhD (Warwick). Professor of Law, University of East London
Source: Fundamina, Volume 28 Issue 1, p. 66-103
https://doi.org/10.47348/FUND/v28/i1a2

Abstract

Research on African unification has not yet explained the reason for the belief in the possibility of post-colonial African states swiftly unifying as a federal or strong, functioning, supranational entity. This contribution attempts to fill this gap in the literature by exploring the various paths towards African unification. Some states pressing for unification misconstrued the history of the successful models that they insisted Africa could follow. This led to the assumption that a near frictionless and workable legal edifice for African unification could be easily created. This contribution has a twofold purpose: First, it draws attention to the importance of the intersection between history and law in construing and explaining the law as it relates to African unification. This is an intersection that has largely been ignored by scholars. Secondly, this contribution adds to the literature that asserts that African unification enthusiasts should reconsider mimicking other models in the expectation that this will help propel their goal of a united Africa. This study examines the routes to African unification, namely the role of socio-cultural interactions of Africans as propounded by Edward Blyden; the romantic speedy path as espoused by more radical forces by which the elite should muster the political will to bring a united Africa into existence; the role of force in creating a supranational Africa out of its independent states; and the role of market integration as an essential ingredient for any deeper and stronger relations among African states.

A Retrospective Evaluation of Affirmative Action – Taking Stock After Twenty Years

by | Nov 20, 2022 | FUND, FUND V28I1

A Retrospective Evaluation of Affirmative Action – Taking Stock After Twenty Years

Author ME Tenza

ISSN: 2411-7870
Affiliations: LLB LLM LLD (UNISA). Senior lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg
Source: Fundamina, Volume 28 Issue 1, p. 104-139
https://doi.org/10.47348/FUND/v28/i1a3

Abstract

Affirmative action measures were included in the Employment Equity Act 55 of 1998 as a vehicle to drive the process of transformation in employment. South Africa has had affirmative action measures for more than twenty years, with the expectation that their implementation would bring equality in employment. The question that arises is whether designated and other employers are making progress in achieving the goals of the Employment Equity Act through the implementation of affirmative action measures in their workplaces. The Employment Equity Report of 2020–2021 states that there is an improvement in the employment of people from designated groups, despite some barriers. This shows that the country is slowly making progress towards achieving the goal of equality in employment. Despite the reports by the Commission for Employment Equity, this contribution argues that the implementation of affirmative action is very slow. Like other programmes designed to change the status quo, the implementation of affirmative action measures has not been without challenges. Factors, such as the unwillingness on the part of designated employers to implement affirmative action measures; lack of appropriate implementation plans in many workplaces; and fear or resistance to change by people occupying senior positions in employment, all contribute to the slow progress in implementing affirmative action measures. In addition, the contribution argues that the limited definition of designated groups is not in line with the Constitution and with international law obligations implied by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The contribution recommends that the Employment Equity Act be amended to comply with the Constitution and ICERD to accelerate the process of change in employment. As a step in the right direction, the Employment Equity Amendment Bill of 2020 empowers the minister to set numerical targets for certain sectors.

The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

by | Nov 20, 2022 | FUND, FUND V28I1

The Development of The South African Emolument Attachment Order Mechanism: A Historical Overview

Author Stephan van der Merwe

ISSN: 2411-7870
Affiliations: BComm LLB LLM PGDip (Higher Education: Teaching and Learning) (University of Stellenbosch). Senior attorney, notary public and lecturer, Law Clinic, University of Stellenbosch
Source: Fundamina, Volume 28 Issue 1, p. 140-170
https://doi.org/10.47348/FUND/v28/i1a4

Abstract

In South Africa, wage garnishment is achieved through the emolument attachment order (hereafter “EAO”) mechanism. This civil debtcollection instrument plays a significant role in South African society, affecting the lives of potentially millions of people. It is therefore concerning that the mechanism is often criticised for lacking effective measures to prevent, monitor, identify and then correct irregularities in the collection of debt through EAOs. This contribution considers the historical context that directed the development of the South African EAO mechanism and the composition of the current South African framework regulating EAOs. It considers South Africa’s unique legal approach resulting from the development of common-law procedural affordances supporting a predominantly civil-law substantive system. It analyses the role of Roman law, Roman-Dutch law, English common law, and the constitutional dispensation in shaping the contemporary EAO mechanism. In the process, the study identifies challenges that have been present since the mechanism’s earliest origins, which can be traced through its historic development and remain contentious in its contemporary version. The study is significant since the EAO mechanism has not yet been subjected to a comprehensive and critical analysis of this kind. Limited research has been conducted on the South African EAO mechanism and there has not been any detailed analysis of its history and development. It is submitted that such an analysis is a necessary first step to facilitate further in-depth comparative research with the aim of developing an effective and fair EAO mechanism.

The myth of a central role by institutional shareholders in corporate governance

by | Nov 19, 2022 | JCCL, JCCL V8 I1

The myth of a central role by institutional shareholders in corporate governance

Author: Ntombizodwa Lucia Zikhali

ISSN: 2521-2575
Affiliations: Candidate Legal Practitioner, Gildenhuys Malatji Inc
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 1 – 20
https://doi.org/10.47348/JCCL/V8/i1a1

Abstract

The need for transparent and high standards of corporate governance is expressly highlighted in s 7 of the Companies Act 71 of 2008. There has been a wide call by those concerned with corporate governance for institutional investors to take a central role in ensuring corporate governance reform is successfully achieved. A number of concerns are highlighted that stand in contrast with this expectation of institutional investors taking on such a lead role. These concerns relate to competition in the investment market, performance incentives, short-termism, unwarranted interference with director authority, lack of expertise, the burden of investment and existing statutory mechanisms making this expectation unrealistic and a potential for more problems rather than a solution.

Personal liability of non-executive directors in South Africa: A global comparative analysis

by | Nov 19, 2022 | JCCL, JCCL V8 I1

Personal liability of non-executive directors in South Africa: A global comparative analysis

Author: Mutsa D Danha

ISSN: 2521-2575
Affiliations: Tutor and LLM candidate, Learning Space Tuition and Wits Law School
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 21 – 34
https://doi.org/10.47348/JCCL/V8/i1a2

Abstract

The South African Companies Act 71 of 2008 (SA Companies Act) contains extensive provisions detailing the circumstances under which directors may be held personally liable for their actions completed while carrying out their duties. These statutory provisions are a partial codification and modernisation of the existing commonlaw provisions that had previously regulated this area of company law. These provisions still apply to the extent that they comply with the Act’s statutory provisions. The common-law tradition in South African company law has its roots in the English common law, which has spawned many other legal traditions, from that applicable in Australia to the tradition that has emerged (and diverged) in the United States of America. This article examines whether, in applying the statutory provisions of the SA Companies Act, the manner in which personal liability may be ascribed to directors would amount to a standard more onerous than jurisdictions with similar legal traditions to South Africa and, as such, render the position of director in South Africa as (comparatively) undesirable. A further examination of whether a director is an executive or a non-executive director is relevant to establish whether liability will ensue and to confirm the position in South African law on this matter. Some of the distinctions between such directors are laid out in the seminal case of Kaimowitz v Delahunt. Overall, this article seeks to ascertain whether the trajectory of South African company law is aligned with the modern forms of the same law that have evolved in its ‘sibling jurisdictions’ (legally speaking). It further seeks to establish whether any variance thereof would result in unintended detriment to the aims of the concerned laws – that is, promoting good corporate governance, and thus attracting good corporate leaders to the Republic.

Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects

by | Nov 19, 2022 | JCCL, JCCL V8 I1

Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects

Author: Batool Hayath

ISSN: 2521-2575
Affiliations: Attorney of the High Court of South Africa
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 35 – 49
https://doi.org/10.47348/JCCL/V8/i1a3

Abstract

The Companies Act 71 of 2008 does not provide a complete codification of company law in South Africa, with the common law still having application. While the Act has done away with certain common-law rules, for instance, the common-law derivative action, it has, in other instances, maintained a co-existence of commonlaw rules and statutory provisions. This article discusses how the coexistence of common-law rules and statutory provisions impacts the smooth application of the Act in the context of the Turquand Rule, pre-incorporation contracts and the common-law stipulatio alteri, and the partial codification of directors’ duties in the Act.