Fundamina

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
1021-545X

Description:

Fundamina is published biannually as the mouthpiece of the Southern African Society of Legal Historians and articles presented for publication are peer-reviewed by national and international subject specialists.

Issue Number

Latest documents

  • The historical application of command responsibility as basis for prosecuting sexual violence crimes under international criminal law: The post-World War II Criminal Tribunals to Rome

    The principle of command responsibility places a legal obligation on military commanders or civilian superiors to take reasonable and necessary steps to prevent and suppress commission of crimes, including sexual violence crimes by persons under their command, or to report to competent authorities if the crimes are committed. This contribution provides a historical analysis of the evolution of the codification and adjudication of command responsibility and its application to prosecute sexual violence crimes under international criminal law. Examining this historical evolution aims to provide legal practitioners with a clear understanding of how the doctrine of command responsibility found its way into contemporary international criminal law treaties, such as the Rome Statute of the International Criminal Court. This will assist legal practitioners to successfully apply command responsibility to prosecute sexual violence crimes and to better understand the interplay between international criminal law and international humanitarian law.

  • “Under the whip” or marital violence, cruelty and drunkenness: Defining the boundaries of judicially intolerable marital behaviour in the Cape Supreme Court, 1890–1900

    This contribution explores marital violence in the Cape during the last decade of the nineteenth century. It is based on a comprehensive review of 587 matrimonial cases heard in the Cape Supreme Court over a ten-year period from January 1891 to December 1900. The study shows that marital violence had occurred in almost one quarter of the matrimonial suits finalised during that decade. The contribution explores the judicial response to violence within marriage. The optimal protection available to an abused wife was a judicial separation order. Such an order was available where continued cohabitation had become dangerous or 'intolerable'. The research explores the kinds of marital behaviour deemed to be sufficiently intolerable to justify a separation order. While the Cape Supreme Court did not always provide abused wives with the protection of a separation order, the court nevertheless expressed firm disapproval of physical abuse. It viewed continual drunkenness as intolerable behaviour, and also regarded both emotional and economic abuse as reprehensible. The contribution also takes a look at the community's response to interspousal violence and at the prevailing societal views of appropriate behaviour for husbands and wives. The study further investigates the development of the companionate marriage as a partnership of equals. It shows that, by the late nineteenth century, wives were demanding more control within the marital consortium and further that contemporary societal expectations determined that marriages should be romantic relationships based on mutual affection. Law plays an important part in both reflecting and shaping social attitudes. The court rulings helped to shape the law by establishing the legal boundaries of so-called acceptable marital behaviour. These cases reveal the law's role in shaping acceptable behaviour for husbands and wives respectively, reflecting and reinforcing gendered marital roles.

  • People for sale: Tracing the historical roots of slavery and human trafficking in early colonial South Africa

    Some researchers assert that trafficking in persons is a contemporary form of slavery that has existed for at least a century between Africa and Europe in the form of the trans-Atlantic slave trade. Other scholars, who only regard human trafficking as trafficking done for the purpose of sexual exploitation, maintain that the origins of modern trafficking dates to the end of the nineteenth century. However, the history of trafficking in South Africa goes back even further. This contribution outlines the history of human enslavement in South Africa from its conceptualisation as slavery through to its evolution as human trafficking. In this investigation, the similarities and differences between slavery and human trafficking are highlighted. By analysing the annals of human trafficking, it is shown that the original form of human exploitation – slavery – has a long-standing tradition in South Africa. It is contended that learning from past human-bondage injustices may contribute positively to a more comprehensive understanding not only of contemporary slavery, but also of the challenges affecting the present success of anti-trafficking efforts.

  • The nationalisation of the South African Reserve Bank: A legal-historical perspective of three central banks

    The debate continues about whether the South African Reserve Bank should be nationalised or not. This contribution looks at the evolution of central banks, as well as at the origin and historical background of the central banks in three countries, namely the South African Reserve Bank, the Reserve Bank of Australia and De Nederlandsche Bank. The shares in the South African Reserve Bank belong to private shareholders; the Reserve Bank of Australia has been the property of the government of Australia since its inception; and De Nederlandsche Bank was nationalised in 1948. The potential nationalisation of the South African Reserve Bank will come with a hefty price tag, as the shareholders will have to be compensated for the value of their shares Section 224 of the Constitution of the Republic of South Africa, 1996 determines that the South African Reserve Bank should 'protect the value of the currency in the interest of balanced and sustainable economic growth'. The constitutional power of the Bank to be responsible for monetary policy will not change if it is nationalised. This contribution recommends that the South African Reserve Bank not be nationalised due to the big cost thereof to South Africa and because not much will be achieved by such a step.

  • 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 drafters of that provision agreed that once a person had finally been convicted or acquitted of an offence, they should not be tried or punished for the same offence based on the same facts or evidence. The ICCPR does not define what a 'final' judgment amounts to for the purposes of article 14(7). This is so because, after several days of deliberation, the drafters of the ICCPR failed to agree on the definition of that term. Despite some states proposing such a definition, the drafters instead agreed to omit it completely, with the understanding that each state will determine the meaning of a 'final judgment' within their own context. This contribution illustrates the drafting history of article 14(7), which shows that the drafters agreed on the definition of the word 'finally' in the provision, but that they decided against including the definition in the provision. This means that states are required to follow that definition when interpreting article 14(7). Furthermore, this study also shows the impact of this drafting history on the reservations made by various states It is argued that certain of these reservations to article 14(7) are incompatible with the drafting history of the provision.

  • A courtroom misdiagnosis: A historical overview of the South African approach to evidence of persons with communication disabilities before 1996

    Over the past centuries, the English and South African jurisdictions have struggled with the best approach to hearing evidence of persons with impaired speech. The English courts' challenges in hearing such evidence have led to the courts there developing legal principles for receiving evidence of witnesses with communication disabilities Unfortunately, these principles have led to courts misdiagnosing witnesses with communication disabilities. Consequently, the courts treated witnesses with communication disabilities similarly to witnesses with mental illness. Accordingly, under English law and later also under South African law, for some time, people with communication disabilities were detained indefinitely without trial. Such detention was subject to pardon by a designated government official. This contribution examines how the courts have ill-treated persons with communication disabilities in England and South Africa during the nineteenth and twentieth centuries. The study uses a periodisation theory to critically argue how witnesses with speech impairment were unfairly treated in both jurisdictions during this period before the promulgation of the Constitution of the Republic of South Africa, 1996.

  • In-between black and white: Defining racial boundaries in colonial Natal at the turn of the twentieth century — Part two

    Mahmood Mamdani has argued that a system of 'define and rule' lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of 'race' dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani's general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to 'race' and 'tribe'. It is the contention of this contribution that Mamdani is correct in his assessment that 'define and rule' lay at the heart of the British colonial project, particularly in Africa This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved on the ground Certain individuals and groups tended to fall between broad definitions of 'race' and 'tribe', both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance The contribution looks at a number of different themes that all relate to the above general issue First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony's newspapers around that time Even though there may have been relatively few individuals who fell 'in-between' the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

  • Freedom of the press in Uganda in the light of the drafting history of articles 29(1)(a), 43 and 41 of the Constitution

    Article 29(1)(a) of the Constitution of Uganda (1995) provides for the right to freedom of speech and expression, which includes freedom of the press and other media. Article 43 provides for the circumstances in which the rights in the Constitution may be limited, including the right to freedom of the press. Article 41 provides for the right of every citizen to access information in possession of the state. In 1989, Uganda embarked on the process of enacting a new Constitution. In this contribution, I demonstrate the drafting history of articles 29(1)(a), 43 and 41 of the Constitution by referring to the report of the Constitutional Commission and the Proceedings of the Constituent Assembly. It is submitted that some of the phrasing of article 29(1)(a) as agreed to by the Constituent Assembly delegates to extend the protection of the right to the freedom of the press was omitted from the final Constitution without explanation. Also, some of the phrasing of article 43 specifically excluded by the Constituent Assembly delegates was included in the final Constitution. This contribution refers to the case law on the right to the freedom of the press and argues that, when dealing with that right, the courts have not clearly explained the two parts under article 43. Since access to information is vital for freedom of the press, this contribution also demonstrates the drafting history of article 41 and refers to cases in which courts have interpreted it.

  • In-between black and white: Defining racial boundaries in colonial Natal at the turn of the twentieth century – Part one

    Mahmood Mamdani has argued that a system of 'define and rule' lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of 'race' dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani's general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to 'race' and 'tribe'. It is the contention of this contribution that Mamdani is correct in his assessment that 'define and rule' lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved in practice. Certain individuals and groups tended to fall between broad definitions of 'race' and 'tribe', both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony's newspapers around that time. Even though there may have been relatively few individuals who fell 'in-between' the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

  • 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 territories. The purpose of this contribution is to consider the government's policy and legislative responses to gangsterism through a historical and constitutional paradigm. The contribution, first, provides a brief historical overview of the causative (especially legislative and socio-economic) factors that led to the proliferation of criminal gangs on the Cape Flats. Secondly, it investigates the violent reality of criminal gang activity in a post-democratic South Africa. This part also focuses on the legislative response to organised crime, in particular chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (which deals with criminal gang activity), as well as on the various interventions and policies by the national and Western Cape Government to address the challenges related to gangsterism.

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