South African Animal Legislation and Marxist Philosophy of Law

Cultura ◽  
2019 ◽  
Vol 16 (1) ◽  
pp. 23-28
Author(s):  
Luis CORDEIRO-RODRIGUES
Keyword(s):  
South Africa ◽  
South African ◽  
Social Reality ◽  
Marxist Philosophy ◽  
Philosophy Of Law ◽  
Berlin Wall ◽  
Animal Farming ◽  
Animal Law ◽  
The Law ◽  
Farming Industry

Marxist Philosophy as an explanation of social reality has, since the fall of the Berlin Wall, been largely neglected. However, some philosophers have contended that it may still be relevant to explain today’s social reality. In this article, I wish to demonstrate precisely that Marxist philosophy can be relevant to understand social reality. To carry out this task, I show that Marxist philosophy of law can offer a sound explanation of Animal law in South Africa. My argument is that South African law is a superstructure that reinforces the power of the animal farming industry in South Africa. That is, the hidden purpose of the law is to benefit the industry. In order to argue for this, I present two sets of arguments. The first set argues that the law facilitates the functioning of the animal farming industry. In the second set of arguments I contend that the law socialises individuals into approving the methods of slaughtering by the animal farming industry.

scholarly journals SOCIAL MEDIA AND THE ACTIO INJURIARIUM IN SOUTH AFRICA – AN EXPLORATION OF NEW CHALLENGES IN THE ONLINE ERA

Obiter ◽  
2014 ◽  
Author(s):  
Priya P Singh
Keyword(s):  
South Africa ◽  
Social Media ◽  
South African ◽  
News Media ◽  
Rapid Rise ◽  
New Challenges ◽  
The Law ◽  
Use Of Social Media ◽  
Alternative Remedies

The rapid rise in the use of social media networking sites in South Africa has posed new challenges to our courts. The law of defamation and privacy, which has long been considered well established, is now facing new demands on its boundaries because of the unique characteristics of social media in the online era.This note will discuss and critique three recent cases individually, concerning issues arising from the use of Facebook (a social media website) and the approach of the courts in extending the traditional law to the new demands of social media interaction.The aim of the note is to evaluate: the considerations which should apply to the granting of an interdict in respect of comments posted on Facebook, especially where alternative remedies are available; whether social media should be treated differently from electronic news media; how to establish ownership of a Facebook profile where such ownership is disputed; liability for anonymous defamatory posts on an individual’s Facebook profile; whether an individual can be liable for defamatory posts not made by himself personally, but in which he has been tagged; whether comments posed as questions can be regarded as defamatory; and the role played by apologies in claims for damages in defamation.The note concludes by discussing how South African courts have extended the traditional principles governing the actio injuriarium action in South African law – to the new challenges posed by the rise in popularity of social media networking sites.

scholarly journals A COMPARATIVE EXPOSITION OF THE LAW OF HUSBAND AND WIFE IN TERMS OF ISLAMIC LAW, SOUTH AFRICAN LAW AND THE LAW OF ENGLAND AND WALES ‒ PART TWO

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Razaana Denson
Keyword(s):  
South Africa ◽  
South African ◽  
Islamic Law ◽  
Legal Systems ◽  
England And Wales ◽  
English Law ◽  
The Law ◽  
Muslim Communities ◽  
Personal Law ◽  
Legal Consequences

The article discusses and compares the dissolution of a marriage as well as the legal consequences thereof in Islamic law, South African law and English law. This is done in order to demonstrate that despite similarities, there are vast differences between the three legal systems. This impacts on how Muslim personal law (MPL) can be recognised and regulated in South Africa and in England and Wales as constitutional democracies. South Africa, England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Internal pluralism also exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, as well as with South African and English law. Notwithstanding the accommodation of MPL in terms of South African and English law, the differences between these legal systems have resulted in decisions that, while providing relief to the lived realities of Muslims, are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

scholarly journals Unpacking the Law and Practice Relating to Parole in South Africa

2017 ◽  
Vol 14 (5) ◽  
pp. 204
Author(s):  
Jamil D Mujuz
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Early Release ◽  
Correctional Services ◽  
The Law ◽  
Parole System

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.

scholarly journals DAMAGES FOR DEPRIVATION OF PARENTAL CARE: INITIATING A GROUNDBREAKING NEW REMEDY FOR CHILDREN M v Minister of Police 2013 (5) SA 622 (GNP)

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Judy Parker ◽  
F Noel Zaal
Keyword(s):  
South Africa ◽  
Parental Care ◽  
South African ◽  
Family Care ◽  
Skills Training ◽  
Children's Rights ◽  
Third Party ◽  
Children’S Rights ◽  
Full Potential ◽  
The Law

In South Africa, as in many other jurisdictions, it is well established that where a parent is unlawfully and culpably killed by a third party any surviving children may claim for loss of support. Detailed rules on damages available in terms of the common law loss of support action have developed over a long period of time. However, the action has generally remained subject to a major limitation. The loss which can be claimed for must be pecuniary or material. This is in accordance with the principle that only patrimonial damages may be awarded in terms of the loss of support action. Thus, damages which can be claimed by children unlawfully deprived of a parent are restricted to compensation for loss of future maintenance they will no longer receive. In reality, the harm and deprivation children experience after death of a parent tend to be much more than what has been recognized as suitable for compensation by means of patrimonial damages. Particularly where there was a close relationship, bereavement may cause long-term emotional harm. The child may also lose out on important life-skills training and guidance that the parent would foreseeably have provided for many years until the child reached maturity. Without such guidance, the child may never achieve his or her full potential. So the child may be significantly disadvantaged even beyond maturity. Unfortunately, in the face of centuries of entrenchment of the law, our courts have been unable to extend the loss of support action to fully cover all aspects of a deprivation of nurturing. They have thus not been able to address some of the most severe dimensions of harm typically suffered when children are wrongfully deprived of parents. South Africa has not been alone in this. Such claims are blocked by the Fatal Accidents Act 1976 in England, where damages can only be claimed for pecuniary loss. Although this was criticized by the Court in, for example, Hay & Anor v Hughes, there appears currently to be no attempt to amend the Act. Similar legislation in Australian states and territories also does not make provision for claims by children for non-pecuniary damages. This is with the exception of the Northern Territory of Australia where the Compensation (Fatal Injuries) Act allows a child to claim damages for loss of care and guidance of a parent wrongfully killed. Fortunately, in the democratic era South Africa has benefited from an infusion of modern, children’s rights-based legislation. Some of the new statutory provisions allow for a reconceptualization of the law governing parent-child relationships. Of foundational importance is the declaration that “every child has the right − … to family care or parental care …” in section 28(1)(b) of the Republic of South Africa Constitution Act, 1996. As will be further discussed below, the actual content of parental care has been to some extent clarified in section 15 of the Children's Act 38 of 2005 (the Act). The references to parental care in modern South African legislation provide scope for judges to develop the detail of the law in accordance with a children’s-rights approach. In M v Minister of Police (M) Mohle J grasped an excellent opportunity to do so and opened the way for future compensation of children for non-material aspects of parental loss. He did this with creative and ground-breaking interpretations of section 28(1)(b) of the Constitution and section 15 of the Act.  In our discussion we provide an analysis and appreciation of the judgment. We show that, whilst M is important for its initiation of a new remedy from which many children can benefit in the future, it is in some respects less than perfectly clear, and therefore leaves important aspects for further development. We consider the implications of the judgment and how South African law needs to be further evolved if children unlawfully deprived of their parents are to be fully compensated for resulting harm.

scholarly journals A CRITICAL REFLECTION ON THE SOUTH AFRICAN LAW OF THE CHILD

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
RB Bernard ◽  
MC Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Best Interests ◽  
Teddy Bear ◽  
Wide Range ◽  
Minor Children ◽  
The Common ◽  
The Law ◽  
A Minor

Children are considered to be vulnerable, and therefore need to be protected against parents, strangers and even themselves. As a consequence, the State’s quest for the protection of children in South Africa is expressed in the implementation of legislation designed to offer greater care and protection. For instance, section 28 of the Constitution of the Republic of South Africa, 1996, offers a wide range of rights which are designed to offer greater protection to children. The rights of children can, in effect, be categorized into two themes. The first relates to the protection of children – as the child is dependent on those around him or her due to a lack of capacity, and is therefore vulnerable. The second theme relates to the autonomy of children. Section 28(2) of the Constitution provides that in any matter concerning a child, the best interests of the child are of paramount importance. However, most South African legislative provisions that deal with minor children seem to miss this principle, and are riddled with inconsistencies. In many statutes, where the principle is recognized, there is either limited appreciation of the significance of the principle and its overall impact on issues concerning children, or there is no coherence with the manner the courts have interpreted and applied the principle. For example, the recent judgment of  the Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The judgment has been heavily criticized by different segments of society for encouraging teens to engage in wanton sexual intercourse, but illustrates some of the flaws in legislation aimed at protecting the welfare of minor children in South Africa. Furthermore, the common law and other legislation such as the Choice on Termination of Pregnancy Act, the Marriage Act, and provisions of the Children’s Act regulating contraceptives and condoms, all contain such inconsistencies. For instance, the common law and section 24 (together with s 26) of the Marriage Act allow a minor from the age of puberty to enter into a valid marriage; section 129 of the Children’s Act requires that a minor aged twelve be assisted by a guardian to undergo a surgical operation; whereassections of the Choice Act do not require parental consent for terminating a minor’s pregnancy. This note reviews the above and other inconsistences currently prevalent in the law of the child in South Africa. A brief overview of the Teddy Bear Clinic case will be considered. Thereafter, it outlines and examines various gender-based contradictions in the law, and examines the possible rationale for justifying the particular legislative measure concerned. The note concludes by proposing possible solutions to the discrepancies that have been identified.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

scholarly journals UBUNTU IN A POST-APARTHEID SOUTH AFRICAN CONTEXT

2011 ◽  
Author(s):  
Cornelia van Graan
Keyword(s):  
South Africa ◽  
South African ◽  
Indigenous People ◽  
Western Civilization ◽  
South African Context ◽  
African Context ◽  
Similarities And Differences ◽  
The Law

In this article, I attempt to determine the position and value of ubuntu in the law of post-apartheid South Africa as well as to determine how ubuntu compares to humanitarianism. To achieve this goal, I examine both ubuntu and humanitarianism but I go further than merely an examination of the two concepts in isolation; a determination of the similarities and differences also takes place. The terms to be used in this study will be ‘traditional ubuntu’, which refers to ubuntu as known and understood by the indigenous people of South Africa, and humanitarianism, as known in the Western civilization.

scholarly journals The Protection Of Personal Information (POPI) Act - Impact On South Africa

2014 ◽  
Vol 13 (6) ◽  
pp. 1315 ◽  
Author(s):  
Michelle De Bruyn
Keyword(s):  
South Africa ◽  
United Kingdom ◽  
South African ◽  
Data Protection ◽  
Personal Information ◽  
Counter Measures ◽  
The United Kingdom ◽  
Protection Legislation ◽  
The Law ◽  
The Government

South Africa has received its own data protection legislation - the Protection of Personal Information (POPI) Act - in November 2013 and is expecting the government to appoint an Information Regulator to enforce the letter of the law. Until then, South African businesses will have time to get their house in order, but uncertainty exists as to how businesses will be affected when this happens. It is anticipated that the enforcement activities by the Information Regulator will be similar to how it is done by the Information Commissioners Office (ICO) in the United Kingdom. The ICO has been enforcing compliance with the Data Protection Act (DPA) of the United Kingdom since it obtained its enforcement powers in April 2010. This article summarises all actions taken by the ICO from April 2010 until the end of December2013 to determine the industries most affected, the contraventions with the highest frequency and, where applicable, the highest monetary fines. This article should provide some insight into what South African businesses can expect after the Information Regulator is appointed and starts to enforce the law. It will also enable them to focus their attention on the safeguarding of business areas with increased data protection risks as well as provide some counter measures that can be taken to prevent punishable contraventions.

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