Contractual obligation and the journey from natural law to constitutional law

by | Sep 25, 2019 | ACTA, ACTA 2015

Contractual obligation and the journey from natural law to constitutional law

Authors François du Bois

ISSN: 1996-2088
Affiliations: Professor of Law and Head of School, University of Leicester; Honorary Research Associate, University of Cape Town
Source: Acta Juridica, 2015, p. 281 – 312

Abstract

The bold promise of the Constitutional Court’s first foray into the field of contract law during Langa CJ’s leadership remains unfulfilled. This paper takes issue with both the Supreme Court of Appeal’s reticent reaction to Barkhuizen v Napier and commentators’ criticism of the CC’s preference for indirect horizontal application of the Bill of Rights. Proposing an expansive understanding of the reach and force of indirect horizontal application, it argues that the Bill of Rights requires a new, constitutionally-informed, conception of the normative foundations of contractual obligation in place of the natural law approach of the Roman-Dutch tradition as articulated by Grotius. Such a conception does not treat the enforcement of contracts as tantamount to enforcing a duty to keep one’s word, a duty of virtue, but as supporting the consensual creation and vindication of interpersonal rights when it is in the public interest to do so. The SCA’s continued rejection of good faith, fairness and reasonableness as principles on which parties and courts can rely directly, as opposed to abstract values underlying operational rules and principles, are shown to rest on a conception of contractual obligation that is incompatible with the constitutionalisation of South African law.

Bhe v Magistrate, Khayelitsha: A cultural conundrum, Fanonian alienation and an elusive constitutional oneness

by | Sep 25, 2019 | ACTA, ACTA 2015

Bhe v Magistrate, Khayelitsha: A cultural conundrum, Fanonian alienation and an elusive constitutional oneness

Authors Sanele Sibanda, Tshepo Bogosi Mosaka

ISSN: 1996-2088
Affiliations: Senior Lecturer, University of the Witwatersrand, Johannesburg
Source: Acta Juridica, 2015, p. 256 – 280

Abstract

With reference to Bhe v Magistrate, Khayelitsha, this article critically examines the interplay between customary and common law under the Constitution. More precisely, it questions the implications of judicial and legislative approaches that conceptualise customary law in cultural terms, whilst treating the common law as immune from similar characterisation. The article argues that such an approach results not only in the further entrenchment of misplaced notions of the cultural ascendancy of the common law over customary law, but also further cements a Fanonesque alienation of the adherents of both systems of law from each other and indeed themselves. This outcome, it is argued, has serious implications for the forging of a constitutionally inclusive citizenship. [H]istory teaches us that, in certain circumstances, it is easy for the foreigner to impose his domination on a people. But it also teaches us that, whatever the material aspect of this domination, it can be maintained only by the permanent, organized repression of the cultural life of the people concerned. . . . In fact to take up arms to dominate a people is, above all, to take up arms to destroy or at least to neutralize, to paralyze, its cultural life. For with a strong indigenous cultural life, foreign domination cannot be sure of its own perpetuation. (Emphasis added.) A Cabral ‘National liberation and culture’in Unity and Struggle: Speeches and Writings (1979) The advent of Western Culture has changed our outlook almost drastically. No more could we run our own affairs. We were required to fit in as people tolerated with great restraint in a western-type society. We were tolerated simply because our cheap labour is needed. Hence we are judged in terms of standards we are not responsible for. Whenever colonisation sets in with its dominant culture it devours the native culture and leaves behind a bastardised culture that can only thrive at the rate and pace allowed it by the dominant culture. This is what has happened to the African culture. (Emphasis added.) S Biko I Write What I Like (2004) The unilaterally decreed normative value of certain cultures deserves our careful attention. F Fanon ‘Racism and culture’ in Toward the African Revolution (1964)

Customary succession and the development of customary law: The Bhe legacy

by | Sep 25, 2019 | ACTA, ACTA 2015

Customary succession and the development of customary law: The Bhe legacy

Authors Sindiso Mnisi Weeks

ISSN: 1996-2088
Affiliations: Assistant Professor, School for Global Inclusion and Social Development, University of Massachusetts Boston
Source: Acta Juridica, 2015, p. 215 – 255

Abstract

The Bhe decision was an important intervention in customary succession and women’s ability to inherit under official customary law. It also had significant implications for the development of legislated customary law and the jurisprudence pertaining to it. This article explores the Constitutional Court’s findings in light of literature and empirical evidence of women’s rights to inherit under customary law both before and after the judgment with the goal of celebrating the legal successes that the judgment symbolises and critiquing it on its limited benefit to remotely placed, rural women on the ground. The article draws on a detailed empirical study of how Bhe minimally impacted the dispute resolution of rural traditional courts around women’s inheritance, substantially — but not entirely positively — impacted a rural magistrates’ court in Mpumalanga and, in turn, impacted the women who rely on these forums for access to justice. It also draws on data from the CommunityAgency for Social Enquiry’s 2010 survey on women, land and customary law to reflect the trends in inheritance practices that have emerged in customary communities from preto post-1994. The article is, in part, a commentary on the narrow interaction between formal and informal legal institutions as well as the need to review the tools possessed by the formal courts to develop vernacular (that is, living customary) law. The article concludes with suggestions on what further developments are needed if rural women are to be served by the law as it stands.

Bridging the gap between people and the law: Transformative constitutionalism and the right to constitutional literacy

by | Sep 25, 2019 | ACTA, ACTA 2015

Bridging the gap between people and the law: Transformative constitutionalism and the right to constitutional literacy

Authors Tim Fish Hodgson

ISSN: 1996-2088
Affiliations: Researcher, SECTION27
Source: Acta Juridica, 2015, p. 189 – 212

Abstract

Only 46 per cent of people in South Africa have heard of the existence of either the Bill of Rights or the Constitution. Only 10 per cent of people have ever read the Constitution or had it read to them. For transformative constitutionalism to be meaningful it must take into account this context and acknowledge that the success of the constitutional project requires the creation of a societal culture shaped by law and a legal culture shaped by society. This paper builds on the work of Chief Justice Langa and others who have written on transformative constitutionalism. It frames the philosophy of transformative constitutionalism as people-focused and acknowledges the need to bridge the gap between people and the law in South Africa. It discusses the historical and systemic reasons for this gap and argues that knowledge and understanding of rights — constitutional literacy — is itself a right. This argument is grounded in the state’s duty to promote the rights in the Bill of Rights and the rights to access to courts, dignity and basic education. Empowered by full knowledge of our rights, we have the right to make the many decisions of which our lives are composed, participate fully, meaningfully and effectively in society, and make decisions about when and whether to approach courts to protect our rights.

Legal transformation and legal education: Congruence or conflict?

by | Sep 25, 2019 | ACTA, ACTA 2015

Legal transformation and legal education: Congruence or conflict?

Authors Dennis Davis

ISSN: 1996-2088
Affiliations: Judge of the High Court of South Africa; President of the Competition Appeal Court; Honorary Professor, University of Cape Town
Source: Acta Juridica, 2015, p. 172 – 188

Abstract

This contribution canvasses the extent to which the legal academy has responded to the ambition of the Constitution in the manner in which legal education is provided in tertiary institutions. In order to answer this question the paper sets out a definition of the concept of legal transformation which is divined from a holistic reading of the Constitution. In particular, the demands which the Constitution places upon the development of the common law is emphasised. Following upon this analysis, the paper examines key textbooks which are used in teaching, particularly of contract and delict, in order to determine the nature of teaching in critical subjects. The analysis reveals that key areas of law are taught as if the Constitution has little or any influence to play in the study of or the development of South African private law. Further, there appears to be a regrettable absence of any engagement with a legal method which might have emerged in order to meet the transformative legal challenges as outlined in this paper.

Transformative constitutionalism – Guiding light or empty slogan?

by | Sep 23, 2019 | ACTA, ACTA 2015

Transformative constitutionalism – Guiding light or empty slogan?

Authors Jason Brickhill, Yana van Leeve

ISSN: 1996-2088
Affiliations: Director, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research Associate, University of Cape Town; Member of the Johannesburg Bar; Law Clerk, Constitutional Court of South Africa; Deputy National Coordinator of Equal Education; Attorney of the High Court of South Africa
Source: Acta Juridica, 2015, p. 141 – 171

Abstract

We engage afresh with the notion of transformative constitutionalism as envisaged by Justice Langa. We respond to the charge that it is an empty slogan, which can mean anything and therefore means nothing. It includes at least two components: economic change and change in legal culture. The economic change must include, at the very least, the entitlement to the material conditions necessary for a dignified life, as represented in the Bill of Rights. We then consider progress, since Justice Langa spoke in 2006, against five challenges that he recognised — both at the level of the jurisprudence during that period and political developments within the legal profession and more broadly. Recent developments suggest that, despite progress, we have been diverted from the path of transformative constitutionalism that Justice Langa proposed, both in relation to economic change and legal culture.