Fundamina

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• The Relationship Between Legal-Political Context and Natural-Resource Wealth Distribution in South Africa

  This contribution discusses the dynamic relationship between legal-political context and the distribution of economic wealth derived from natural resources. By reflecting on South Africa’s critical legal history in natural-wealth distribution, it illustrates that law, seemingly neutral and devoid of politics, is in fact political and capable of unjust outcomes. The aim of this contribution is to highlight the effects of the colonial and apartheid legacies of inequitable distribution of natural-resource wealth and its ongoing ideological influence on the post-apartheid legal-political context and its distributive policies. The historical use of law as a political tool to control the distribution of natural-resource wealth in specifically minerals and water is discussed to illustrate this dynamic relationship. Furthermore, the legal powers attributed to the role of the state in legal-political context produce economic inequalities or equalities depending on the prevailing understanding of the state’s role and its priorities. During the colonial-apartheid eras, law was used to bolster political and capitalist interests. It is argued that South Africa’s untransformed legal-political context remains susceptible to undemocratic outcomes in the form of neo-liberal capitalism. From a constitutional distributive justice perspective, this study problematises the legal-political context and critically discusses the state’s failure to give sufficient attention to its transformative and distributive role as evidenced by the high rate of poverty and unemployment in South Africa. For example, public trusteeship was legislated for the state to ensure beneficial management of South Africa’s water for all its citizens. Similarly, state custodianship of mineral resources was legislated to promote “justifiable social and economic development”. Legal mechanisms like these empower the state to achieve distributive justice with regard to South Africa’s natural-resource wealth. However, only through cultivating a transformative constitutional legal-political context with an accountable state willing to fully harness its distributive role, will equality start to materialise in the livelihoods of citizens.

• The Genesis of the Generic Idea of Human Dignity in South African Law

  The modern idea of human dignity, legalised in 1948, has a rich and profound legal history, also in the South African context. Before 1994, when human dignity was constitutionalised in South African law, the common-law concept of dignitas was intrinsically connected to status and hierarchy in society and it endorsed judicialised inequality and discrimination against certain classes. Yet, as far back as 1934, Gardiner AJA, in a minority judgment in Minister of Post and Telegraphs v Rasool, [Fn2] argued along the lines of critical morality to object to the majority’s ruling that the common-law concept that everyone is equal in the eyes of the law can be abrogated by applying the separate-but-equal principle, if such application was not categorically outlawed by legislation. This, according to Gardiner, resulted in the impairment of the dignitas of blacks [Fn3] by relegating them to a lower order in society. But Gardiner AJA’s novel application of the dignitas principle functioned neither as the pre-war paradigm of human dignity as initially formulated by the Stoics, nor as the common-law claim of dignitas. It rather comports with the current paradigm that everyone is equal and inherent human dignity needs to be respected and protected. Rasool was probably the first minority judgment in a Western legal system in which dignitas-as-human-dignity was applied on a horizontal level, introducing a new line of legal thought that allows all humans to enjoy equal legal capacity to enforce rights outside the moral (vertical) realm. In this contribution, Gardiner AJA’s usage of dignitas- as-human-dignity will be contrasted against the pre-and post-war paradigms of human dignity by using the common-law concept of dignitas as a placeholder to illustrate the differences between the two paradigms and to provide a theoretical justification for the post-war paradigm. Footnote 2: 1934 AD 167. Footnote 3: Although the terms “Asiatics” and “non-Europeans” were used by the Appellate Division in this 1934 judgment, this contribution opts to refer to the more inclusive term “blacks”

• A Peregrination through the Law of Provocation – An Historical Perspective

  The issue of whether provocation (or emotional stress) should provide a defence in criminal law, and to what extent, has been dealt with in different ways in South African law. Initially, following the commonlaw sources, a provoked offender was not entitled to a defence on the basis of the provocation. At best, there could be mitigation of sentence in these circumstances. This strict position was somewhat ameliorated by the adoption of the English notion of specific (and basic) intent, whereby a provoked offender could be convicted of a lesser offence on the basis of the provocation serving to reduce the specific intent required for a more serious crime (notably murder) to a lesser crime of basic intent (such as culpable homicide). This pragmatic approach was, however, contrary to principle and the progressive adoption of the psychological approach to criminal liability, which foregrounds the subjective capacity and fault of the individual in determining blameworthiness, inevitably resulted in the logical result that provocation (or emotional stress) could found a complete defence to liability. This development took place with the concomitant acceptance of toerekeningsvatbaarheid (or criminal capacity) as an essential element of criminal responsibility. Under the influence of policy considerations, the Supreme Court of Appeal in S v Eadie has sought to resile from this commitment to individual blameworthiness. This contribution traces the development of the defence of nonpathological incapacity based on provocation (or emotional stress) prior to the Eadie decision.

• Petitions and Democracy: An understanding of the Historical Significance of the Right to Petition in Nineteenth-century United States of America

  With the expansion of liberal, constitutional and representative systems, the so-called long nineteenth century (1780–1914) in the United States is regarded as a transformative period in the development of democracy. Whilst voting and party politics have become central to democratic practice, the right to petition, enshrined in the First Amendment to the US Constitution, historically played a pivotal role in American political life. Petitions provided disenfranchised groups, including women, immigrants and African and native Americans with a way to actively engage in political processes reserved for the voting classes, allowing them the opportunity to influence legislation and public discourse. Importantly, during this period, petitions were not merely symbolic, but were an active tool for democratic participation that empowered marginalised groups and contributed to the shaping of American democracy. Scholars emphasise the significance of petitioning as a powerful, inclusive form of political engagement, often more accessible than voting, especially when rights were limited. In contrast to today’s focus on voting and party politics, petitioning provided a vital alternative avenue for political participation, bridging the gap between elections. However, the historical importance of this right has been largely forgotten in contemporary political discourse, with recent Supreme Court opinions indicating a lack of understanding regarding its constitutional significance. The disregard for petitioning in modern democracy has contributed to a narrowing of democratic engagement.By revisiting the history of petitioning, this contribution aims to reconsider the historical role of petitioning in democracy in the US, exploring its potential to complement electoral politics and to strengthen participatory democracy in contemporary settings. The justification for this study arises from the growing interdisciplinary interest in petitions and the practice of petitioning across diverse historical and contemporary contexts.

• From “Belligerent” To “Organised Armed Group” Understanding the Legal Justification of the Metamorphosis of the Designation of Non-State Groups in a Common Article 3 Conflict

  The Geneva Conventions were negotiated at the diplomatic conference held in Geneva in 1949, making 2024 its seventy-fifth anniversary. The intentions of states at that time concerning the identification of a non-state party to an armed conflict not of an international character was for a non-state group to be identified as belligerent; however, in contemporary conflict situations, a non-state party is identified as an organised armed group. This contribution examines the metamorphosis of these terminologies in relation to the identification of a non-state party to a conflict by exploring the travaux préparatoires of the Geneva Conventions. Furthermore, to justify the shift in the interpretation of a non-state party as belligerent to organised armed groups, this study analyses the legal basis of this change from an historical perspective by examining whether an evolving intention was envisaged by the plenipotentiaries during the negotiation of the Conventions. And, finally, this contribution compares the original intention of the drafters of the Conventions with the contemporary interpretation in the application of the Common Article 3 in relation to the identification of non-state groups.

• Women and/as Space: The Impact of Apartheid Geography on Women and the Construction of Womanhood

  Legal scholars have considered the confluence of law, space and sexuality. What is less visible is a focus on the connections between women and apartheid geography. This contribution explores those connections with particular reference to the Group Areas Act 41 of 1950 and argues that the latter made use of racialisation and the control of their movement to use women as spatial markers.Drawing on feminist geography, this contribution unpacks the role of gender in the production of space and the manner in which space is complicit in the constitution of gender to explore the inscription of space on women’s bodies. It then considers the inscription of space on women’s bodies as the producers of populations, which must be understood as “racialised”, to (re)produce segregation. Furthermore, this study considers the role of gender in the production of race and the role of race in the construction of varying iterations of gender in the context of Afrikaner nationalism. By unpacking the concepts of the volk and the volksmoeder, this contribution illustrates how the usurpation of white womanhood and motherhood, as tools of Afrikaner nationalism, were instrumental in the formation of apartheid and its geography. This, in turn, had a devastating impact on black women. This contribution also looks at the manner in which women were affected by apartheid legislation that made their bodies the site of segregatory and apartheid geography. It is argued that women became a primary means by which the Group Areas Act demarcated race. This, together with the manner in which that Act controlled the movement of women, meant that women became the signifiers of space. It is submitted that women were used to (re)produce urban areas, townships and homelands.

• The Ugandan Parliament's Power To Censure A Cabinet Minister: Understanding Article 118 of the Constitution in the Light of Its Drafting History

  Article 118(1) of the Constitution of Uganda, 1995 empowers Parliament to censure a cabinet minister on any of the grounds mentioned therein. In such an event, article 118(2) authorises the president to take appropriate action unless the minister resigns. The Constitution does not describe or define what 'appropriate action' means. This contribution looks at the drafting history of article 118 to argue, inter alia, that the drafters intended the president to dismiss the minister upon censure by Parliament. The study relies on similar practices in other countries, such as Ghana and Seychelles, to suggest that there is a need to amend article 118 of the Constitution of Uganda to specify the action(s) the president is required to take once Parliament has censured a minister.

• The Procurement, Removal and Use of Human Tissue and Organs in South African Law: A Legal-Historical Analysis

  The current legal framework regulating human tissue and organ procurement, removal and use is inconsistent, inadequate and often ambiguous. By tracing the legal developments relating to the regulation of human tissue and organs since the inception of the first South African regulatory framework in 1952, this contribution seeks to determine the origin of existing limitations and challenges pertaining to this field. Case law is also discussed to illustrate the lack of understanding and complexity regarding the application of the relevant provisions in a practical context. The study concludes with a number of recommendations aimed at closing the identified gaps, based on past best practice emerging from the legal-historical analysis conducted.

• The Historical Relation of English Common Law and Classical Islamic Law: A Critical Examination

  In the twelfth century, the establishment of common law under Henry II, king of England, marked a pivotal moment in the evolution of the English legal system. While the roots of this legal framework are traditionally traced back to Roman and canon law traditions, there is ongoing debate among historians regarding potential direct influences from Islamic legal institutions. Arab civilisation significantly influenced the identity of Sicily, ruling the island for more than two centuries until its conquest by Norman knights in 1061. This contribution seeks to examine critically the historical connections between classical Islamic law, as practised in Arab Sicily, and specific legal principles evident in the common law of England. The analysis delves into the origins of concepts, such as trust (waqf), the primacy of law over the state, individual freedoms, contractual freedom, judicial impartiality and the doctrine of res judicata. It conducts a comparative study to highlight the similarities and differences between these two legal systems. This study clearly indicates that the interaction between Islamic and common law traditions left a lasting imprint on legal systems worldwide, underscoring the significance of cultural exchange, but also emphasises the dynamic nature of legal evolution through cross-cultural influences.

• Seventy-Five Years of the Genocide Convention: The Obligations on States to Prevent Genocide

  This contribution explores the historical background of genocide in international law, emphasising its role in shaping the current legal framework for preventing and punishing genocide. The discussion begins by taking a look at the origins of the term “genocide” as introduced to international law after World War II through the Genocide Convention of 1948. This contribution highlights the extensive historical context of the concept of genocide, emphasising the need to examine it from an international public-law perspective to understand the obligations placed on states for preventing genocide. The recent case law before the International Court of Justice in cases brought by Ukraine and South Africa illustrate the importance of genocide in the contemporary international legal context. South Africa requested the court to grant an order for Israel to suspend its military operations in and against Gaza. The court chose to rather follow precedent and granted the order that Israel take all reasonably available measures to prevent genocide. This was predictable as the court has an extensive history of interpreting the crime of genocide. This contribution discusses the legal status of genocide by looking at reports from the International Law Commission, relevant case law of the International Court of Justice and international instruments signed to enforce obligations toward genocide prevention. It provides a much-needed academic summary of the interpretation of genocidal acts as mentioned in the Convention, as well as of the obligations of states toward the prevention of genocide under international law. Such research is relevant as the prevention of genocide remains a priority in the international community.

Featured documents

• The Role of Technology in the Historical Development of the Reproduction Right in Musical Works

  This contribution recounts the historical development and expansion of the reproduction right in copyright in response to, and as a result of, technological developments, with a focus on the music reproduction right. It is shown how the very first copyright statute, the Statute of Anne, was enacted ...

• A retrospective evaluation of affirmative action – Taking stock after twenty years

  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...

• The right against double jeopardy (non bis in idem) and the drafting history of article 14(7) of the International Covenant on Civil and Political Rights, 1966

  Article 14(7) of the International Covenant on Civil and Political Rights, 1966 provides that '[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country'. The...

• From Judicial Management to Business Rescue: A Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

  When the concept of to 'corporate rescue' was introduced in the form of judicial management in South African company law in 1926, it was unique. By the start of the twentieth century, it had become clear that companies were not only major contributors to the economy, but also major employers. It...

• A retrospective evaluation of affirmative action – Taking stock after twenty years

  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...

• 'What's past is prologue': An historical overview of judicial review in South Africa – part 1

  This contribution explores the historical origins and development of judicial review in South Africa as a function and as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of...

• 'What's Past is Prologue': An Historical Overview of Judicial Review in South Africa — part 2

  This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state It also provides bibliographical details of sources chronicling...

• The proliferation of criminal gang activities on the Cape Flats and the subsequent legislative and policy responses

  The proliferation of criminal gang activity is inextricably linked to the lingering legacy of the apartheid regime. Decades after apartheid, the communities of the Cape Flats in the Western Cape face a continuous onslaught of violence, predominantly brought about by rival gangs competing for drug...

• The development of the South African emolument attachment order mechanism: A historical overview

  In South Africa, wage garnishment is achieved through the emolument attachment order (hereafter 'EAO') mechanism. This civil debt-collection instrument plays a significant role in South African society, affecting the lives of potentially millions of people. It is therefore concerning that the...

• A South African historico-legal perspective on plagues and pandemics

  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...