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Regte, gesag en waardes
Get PDFRights, authority and valuesIn view of Johan van der Vyver\u27s immense contribution to the clarification of the meaning of legal concepts, the establishment of terminology, the analysis of doctrines and the explanation of the foundations of matters, it is considered appropriate in this article to revisit a question which has occupied jurists since time immemorial, namely what a right might be. This question cannot be addressed without dealing with the context in which it stands. Therefore the fa te of the doctrine of subjective rights is firstly traced, after which the phenomena of human rights and fundamental rights are discussed Following these analyses, the question whether a single, comprehensive concept of right is viable is considered. In this context the need for the legal scholar to thoroughly consider the origin or justification for the existence of government authority is motivated. It seems as though unanimity about a concept o f right at anything beyond a relatively superficial, mechanical level is not really possible, but that a meaningful scholarly discourse on the matter is possible, at least among scholars who acknowledge the determining role of unverifiable presuppositions in the practice of scholarship. Finally it is argued that there is a connection between the values of the Constitution, the exercise of government authority and the development of a South African concept of right
Property rights and hierarchies of power: a critical evaluation of land-reform policy in South Africa
Get PDFThe programme of land reform laws introduced in South Africa since 1991 is often seen and discussed as nothing more than a highly technical, black-letter aspect of South African law. In this article, the author directs attention to the policies that underly the land reform laws, and discusses the transformative potential and effect of land reform laws in view of these policies. The main question is whether the land reform programme has succeeded in breaking away from or undermining the hierarchies of power that were inherent in traditional common-law property relationships and, particularly, in the politically sanctioned and statutorily entrenched system of apartheid land law. Through the analysis of the most important land reform laws the author concludes that the land reform programme is only partially successful in this regard, since many of the new laws still uphold or entrench the underlying hierarchies o f power that characterised apartheid land law
The role and future of traditional leaders in South Africa
Get PDFTraditional authorities play an important role in South Africa. Not everyone is, however, prepared to recognise them as role players. In government circles, on the one hand, a tendency exists to marginalise the role of traditional leaders and, on the other hand, a White Paper process is under way to spell out the role of traditional leaders in the future dispensation. Traditional authorities are seen by their communities as leaders through and by the people. In some instances it is even stated that they receive their authority from God. Research done in the Province of the North West, the Northern Province and the Province of KwaZulu-Natal illustrates that in many of the communities in which traditional leaders serve they are regarded as leaders and they are also seen as symbols of unity in the community. The idea that the system of traditional leadership may be abolished was met by fierce resistance. Traditional leaders are recognised in terms of section 211 of the 1996 Constitution. The Constitution also recognises the possibility that national and provincial legislation may provide a role fo r traditional leaders at national, provincial and local level. Some of the findings of the above-mentioned research programme illustrate that traditional leaders were used as political tools in the past and that they should refrain from participating in party politics. Findings also highlighted the fact that the fragmented legislation dealing with the recognition and functions of traditional leaders (caused by the apartheid system) should be rationalised. Some confusion still exists as to the role of traditional leaders vis-á-vis local government and it is recommended that the respective roles should be clearly spelled out. Traditional communities resent interference in their own affairs without them being consulted. In some respects rural women fe lt that they are not part of the decision-making process and that in some instances they are not allocated land. They, however, express the need to be consulted before any changes to their position is made. Traditional leaders have an important role to play in development at grassroots level. Traditional communities themselves need to be consulted when development is planned and a proper mechanism should be implemented to ensure that rural communities also benefit from rural development schemes
The complexity of science
Get PDFIn this article an alternative philosophy of science based on ideas drawn from the study of complex adaptive systems is presented. As a result of the enormous expansion in scientific disciplines, and the number of scientists and scientific institutions in the twentieth century, I believe science can be characterised as a complex system. I want to interpret the processes of science through which scientists themselves determine what is regarded as good science. This characterisation of science as a complex system can supply an answer to the question why the sciences have been so successful in solving growing numbers of problems and correcting their own mistakes. I utilise components of complexity theory to explain and interpret science as a complex system. I first explain the concept of complexity in ordinary language. The explanation of science as a complex system starts with a definition of the basic rules guiding the behaviour of science as a complex system. Next, I indicate how various sciences have resulted through the implementation of these rules in the study of a specific aspect of reality. The explanation of the growth of science through evolutionary adaptation and learning forms the core o f the article
Die sakelys vir wetsteksvertolking en die epog van konstitusionalisme in Suid-Afrika
Get PDFThe agenda for legislative-text interpretation and the epoch of constitutionalism in South AfricaThis article deals with the new demands that the advent of an era (or epoch) of constitutionalism places on the agenda o f statutory and constitutional interpretation(i.e. legislative or enacted law-text interpretation) in South Africa. Three central motifs guide the discussion:• A self-dependent legislative text with an inherent, fixed meaning does not exist. • The characteristic operational intent of the text genre limits the multifarious possible meanings of an enacted law-text. This confronts its interpreter with an inescapable responsibility to choose a particular meaning.• The epoch of constitutionalism inevitably places a transformational subversion of certainties regarding statutory interpretation on the agenda of innovative legislative-text interpretation.The jurisprudential applicability of mainly three interpretative narratives is considered, namely reflective rhetoric, deconstruction and philosophical hermeneutics. First, the necessity for a new terminology is considered. Legislative-text interpretation is advanced as the appropriate term designating statutory as well as constitutional interpretation. Despite their dissimilarities, statutory texts and the constitutional text have enough in common to be grouped together as "legislative texts ”, a sub-genre of law-texts in general. Second, some of the crucial assumptions of the common-law (literalist-cumintentionalist) approach to statutory interpretation are subjected to critical scrutiny. The concept "intention of the legislature” is looked at in both an optimally positive and an optimally negative way. Third, the significance for legislative-text interpretation o f insights gleaned from contemporary philosophies o f interpretation, is considered These insights are the following: Insight 1: A standard interpretation of law texts that assumes that they are independent bearers of authority and that they derive from accepted meanings of legal concepts masks the perpetuated hegemony of dominant classes/groups/ categories in society, with an unfounded appeal to an illusory neutrality and impartiality o f the law. Insight 2: Language, as a complex system, is the source and guide of and operational space for all meaning. Insight 3: Meaning can only be meaning-in-context. Insight 4: Our pre-understanding not only shepherds our understanding but makes it possible. The deeper an assumption is hidden, the more intense and far-reaching is its effect on our understanding. Insight 5: The (possible) applications of a provision of a legislative text, always pilot its interpretation. Such provision can never be understood in isolation from, or irrespective of its possible applications.The article concludes by taking stock of the unfounded certainties about statutory interpretation it has sought to undermine and suggests the exploration of an approach to law-text interpretation that honours both the concerns of present-day philosophies o f understanding and jurists’ responsibility to opt for text-meanings that will optimise justice
Van der Vyver’s analysis of rights: a case study drawn from thirteenth-century canon law
Get PDFIn an important article published in 1988, Johan Van der Vyver challenged the prevailing reliance on Wesley Hohfeld’s taxonomy of rights. Hohfeld\u27s division of rights into claims, powers, privileges and immunities, Van der Vyver stresses, is excessively concerned with "inter-individual legal relations” at the expense of the right-holder\u27s relationship to the object of the right. Van der Vyver proposes instead that an assertion of right involves three distinct juridic aspects:• legal capacity, which is "the competence to occupy the offices of legal subject;• legal claim, which "comprises claims of a legal subject as against other persons to a legal object";• legal entitlement, which specifies the boundaries of the right-holder\u27s ability to use, enjoy, consume, destroy or alienate the right in question.This article applies Van der Vyver’s taxonomy to the operations of thirteenthcentury canon law, and demonstrates that Van der Vyver’s analysis provides greater depth than Hohfeld\u27s, in that it considers both the relationship of the person claiming a particular right and the object of that right
Die pactum successorium: stiefkind van die Suid-Afrikaanse reg
Get PDFThe pactum successorium: stepchild of South African lawSouth African law does not generally permit a testator to bequeath his estate by means of contract. This rule flows from the general rule in Roman Law that an estate must devolve either by will or in terms of the law governing intestate succession. Despite the prohibition against succession pacts there have been numerous attempts by contracting parties to regulate devolution of their estates inter vivos by means of contract. Such contracts are commonly called pacta successoria and have been regarded as contra bonos mores and invalid since early law. Although a number of reasons have been put forward for the maintaining of the prohibition against pacta successoria, the main reason for the aversion against the pactum successorium is the fact that they interfere with the testator’s freedom of testation. It is suggested that the existing law in South Africa with regard to the pactum successorium should be changed. This calls for a reappraisal of the principle of freedom of testation. It is clear that South African law takes this principle much further than is the case in other legal systems such as in England and Germany. Furthermore, the South African devotion to the principle of freedom of testation appears strange in view of the obvious conflict with the principle of freedom of contract. Finally, it is suggested that the common law prohibition against the pactum successorium should be abolished. Since it is clear from the attitude of the courts so far, this can only be effected by legislature
Subsidiarily in her/his own sphere. Women and Christian politics
Get PDFThis article is a discussion of the attitude of Christian social thought to women. In 1891 two influential Christian documents addressed this issue. Pope Leo XW\u27s Rerum Novarum and Abraham Kuyper’s Het sociaale vraagstuk der Christelijke religie were responses to industrialization and subsequent Christian responses to feminism have had to face the legal, cultural and political aspects of the enhanced female participation in commerce which assumes equality for all consumers in the market-place. Catholic and Protestant political initiatives in Europe in the early 20th century, in line with these two approaches, assumed that the vocation of Christian women, inside and outside the domestic sphere, has to be that of a bulwark against materialism and liberalism. In line with this point o f view they helped to counter the domination of market-place values over all spheres of social life. These documents are also part o f latter-day efforts to reconsider women’s place. Female involvement in industry and public life around the world increases unabated as "affirmative action ” re-structures the public status of women. The ambiguous legacy o f "economic rationalism " poses new threats since the burden of social welfare falls again onto the shoulders of overworked women. A sociological account which would be Christian must address historical, social and economic ambiguities. This article explores the issue, noting typical ways in which these two prominent Christian contributions will be interpreted
Conflicting belief systems: some implications for education
Get PDFIn this article the conceptions of knowledge and time within Christianity, secular humanism and traditional African religion are juxtaposed. In order to emphasise the vital role o f belief systems in the field of education, some educational implications are inferred from these different conceptions of knowledge and time. The need to create enough space within the South African education system so that parents will be able to send their children to schools where education is conducted according to their particular belief systems is also foregrounded