CODICILLVS - University of South Africa

CODICILLVS 

May/Mei 2000 

Volume XXXXI No 1 

Regsfakulteit, Universiteit van Suid-Afrika 

Faculty of Law, University of South Africa

Codicillus 


May/Mei 2000 

Faculty of Law 

University of South Africa 

Regsfakulteit 

Universiteit van Suid-Afrika 

May/Mei 2000 


The cover page of this Codicillus was 

designed by Hetta Vontsteen 

The sketches were done by Marinus 

Wiechers 

ISSN 0010±020X 

CODICILLVS 

Faculty of Law University of South Africa 

Regsfakulteit Universiteit van Suid-Afrika 

Printed and published by the University 

of South Africa, Pretoria 

Gedruk en uitgegee deur die Universiteit 

van Suid-Afrika, Pretoria 

Editorial committee: WB le Roux (editor); 

GJ van Niekerk (assistant editor); PD 

Brink (besigheidsbestuurder); CN Chetty; 

I Moodley; LC Coetzee; C Cromhout 

(technical editor) AEAM Thomashausen; 

D Gani; H Wildenboer (assistent technical 

editor); A Jacobs; E Hurter; Dr L Bopape 

(African Languages); MN Makhambeni 

(Head: Zulu Languages) 

CONTENTS Ð INHOUD 

Contributions ± Articles / 

Bydraes ± Artikels 

HIV/AIDS and the law ± a short 

exchange 

2 The need for a new statutory 

offence aimed at harmful HIVrelated 

behaviour 

11 Stigmatising HIV/AIDS, stigmatising 

sex? A reply to Professor Van 

Wyk 

Legal education in the new republic 

± three perspectives 

17 Legal education and receptiveness 

to change 

23 Civil republicanism and legal education 

32 Universities as heterogeneous public 

spaces 

38 Lawyers as flannelled fools: Part 1: 

Sir Murray Bisset 

45 A brief discussion on counterfeit 

goods and the Counterfeit Goods 

Act 37 of 1997 

53 Onderhoud ± eers weeskind, nou 

stiefkind 

59 Conceptualising and internalising 

the Certificate Programme in Law ± 

a maiden voyage 

Varia 

65 About books ± Oor boeke 

68 From the law reports ± Uit die 

vonnisverslae 

76 From the dean's desk ± Van die 

dekaan se tafel 

1

The need for a new statutory 

offence aimed at harmful HIVrelated 

behaviour: The general 

public interest perspective 1 

Christa van Wyk, Professor, Department of 

Jurisprudence, University of South Africa 

Mongwadi o hlalosa ka tlhokagalo ya go 

dira molao kgahlanong le go fetetsÏana ka 

tswatsÏi ya Aids. Mongwadi o hlalosa go re 

motho yo a naganago go re o na le yona 

tswatsÏi ye o swanetsÏe go ya ditekong pele a ka 

dira ditiro tsÏeo e le go gore di ka tsenya 

maphelo a ba bangwe kotsing. Mongwadi o 

hlalosa ka fao batho bao ba fetetsÏago ba 

bangwe ka bohloko bjo ba swanetsÏego go 

fegwa molato ka gona. 

Kule ngxoxo umbhali uthula imibono ngokusungulwa 

komthetho wokuthi kube 

yicala ukuthi umuntu unegciwane i-HIV 

noma isifo sengculazi uqobo, asidlulisele 

komunye umuntu ngamabomu. Lokhu phela 

kwenzeka ngokuthi athi umuntu azi 

ukuthi uphila kanjani kwezasocansini, kanye 

njena nokuthi yena ngokwakhe uziphethe 

kanjani, kodwa ehluleke ukuvikela 

uzakwabo. Kumele umuntu nomuntu asebenzise 

izivikela ezifana nejazi lomkhwenyana 

(ikhondomu) ukuze angasabalali leli 

gciwane lengculazi. Omunye umbono owokuthi 

kungabanjani uma laba bantu asebaziwa 

ukuthi banaleli gciwane bahlaliswe 

endaweni eyodwa evikelekile ukuze umphakathi 

nawo uvikeleke? 

1 Background 

In 1993 Doyle and Esterhuyse of Metropolitan 

Life forecast three possible 

future scenarios for HIV in South Africa. 

They called them a best case scenario, a 

medium case scenario and a worst case 

scenario. The worst case scenario (an 

infection rate of 16% by 2000 and 24% 

ÐÐÐÐÐÐÐÐÐÐÐ 

1 Presentation at a South African Law Commission consultative meeting: Is there a need for a new statutory 

offence aimed at harmful HIV-related behaviour? 03-02-2000 Pretoria. 

2 Codicillus XXXXI No 1

y 2005) was premised on the presumption 

that no cure for AIDS would be 

found, and that people would not adapt 

their sexual lifestyles in any meaningful 

way. 2 

The worst case scenario is becoming a 

reality. It is calculated that at least 12 

percent of the adult (that is ages 15±60) 

population were infected by the end of 

1997, 3 and the Bureau of Market Research 

at the University of South Africa 

estimates that, as a result of AIDS, the 

South African population will grow 

from the present 44,7 million to only 

50 million in 2020. 4 

We also know that no economically 

viable cure, 5 nor AIDS vaccine is yet in 

sight, 6 and we can infer from the 

growing rates of HIV infection that no 

meaningful change in sexual behaviour 

is taking place. It would be fair to say 

that South Africa is experiencing a near 

state of emergency because of the growing 

HIV epidemic and that Southern 

Africa faces a human disaster on a scale 

never seen before. 

2 Two models 

There are two international models for 

combating AIDS: The first model emphasises 

the rational nature of people 

and their fundamental rights. It promotes 

non-coercive measures, such as 

education, information, voluntary testing, 

counselling and voluntary behavioural 

change, and is very often 

accompanied by anti-discrimination legislation. 

This model assumes that informed 

people will exercise selfdiscipline, 

adapt their behaviour to 

protect themselves and others, and act 

in a socially responsible way. 

The second model emphasises state 

intervention and coersion in the private 

lives of people (eg by prescribing compulsory 

testing for couples to be married 

or even for the whole population, and by 

imposing quarantine, isolation and 

criminal sanction) and stresses the individual's 

responsibilities towards 

others. This model probably overestimates 

the success of state control. 

The first model has rather consistently 

been applied in South Africa. Emphasis 

has been laid on information and 

education about HIV, and on the rights 

of people with HIV. A national AIDS 

Prevention Programme, and an AIDS 

Advisory Group were established as 

early as 1988, while a massive education 

and information campaign was 

launched and leaflets in nine languages, 

as well as free condoms were distributed. 

7 In 1990 an inter-departmental 

AIDS committee was established which 

had to finalise a national strategy, while 

in 1993 a special project committee (a 

precursor of the present one) was set up 

by the South African Law Commission 

to investigate the legal aspects of HIV 

with a view to possible law reform. A 

policy which aimed at preventing foreigners 

and immigrants with HIV from 


2 Modelling the AIDS epidemic ± understanding some of the issues and implications of the results Metropolitan Life 

(1993). 

3 Aspects of the law relating to AIDS: the need for a statutory offence aimed at harmful HIV-related behaviour 

Discussion Paper 80 of the South African Law Commission (1999) 39. 

4 Rapport 16-01-2000 8. 

5 Although significant progress has been made with the treatment of HIV infection and opportunistic 

diseases. The new combination drugs have proved to be highly successful, but they are extremely 

expensive and not widely available in developing countries. Nevertheless, it is hoped that HIV infection 

will increasingly be seen as a chronic condition, comparable to, for example, diabetes (Cohn ``Recent 

advances ± HIV infection-1'' 1997 British Medical Journal 487). 

6 Although it has been claimed by the president of the MRC, Professor William Makgoba, that South Africa 

will have a vaccine against AIDS by 2004. 

7 Van Wyk Aspekte van die regsproblematiek rakende VIGS LLD thesis (Unisa) (1991) 94±95. 

3

entering South Africa, was, for example, 

abandoned early in the 1990s. 

Since 1994, these efforts have been 

repeated by the new democratically 

elected government, which also established 

an Inter-Ministerial Committee 

on HIV/AIDS and recently, a National 

AIDS Council. 

This non-coercive approach is also 

reflected in, for example, the schools 

policy on HIV which was introduced last 

year by the Department of Education, 8 

and which confirms the principle of no 

unfair discrimination against learners 

with HIV/AIDS. Legislation was also 

adopted to prevent unfair discrimination 

against people with HIV in the employment 

sector. 9 

However, when one looks at the 

escalating figures of HIV infection, it is 

clear that this approach 10 has not been 

successful, and has probably been too 

idealistic. A middle course between the 

two extremes, or a combination of the 

two models, should rather be adopted. 

This approach would accept that rights 

to equality and non-discrimination go 

hand in hand with duties and responsibilities, 

and that once a certain level of 

awareness and information about HIV/ 

AIDS is reached in a community, those 

who continue to act in an irresponsible 

manner must be held accountable. 

While it is accepted that coercive measures 

are not suitable as a first line of 

attack in combating HIV, they are a 

suitable back-up for the accommodating 

and enabling (non-coercive) efforts 

made by the public health authorities. 

3 Coercive measures 

It can probably be assumed with safety 

that the majority of the estimated 

1 600 11 people infected with HIV every 

day in South Africa, are infected 

through heterosexual intercourse. I will 

therefore restrict myself to the sexual 

transmission of HIV, and not go into the 

problems surrounding blood donations 

or mother to child transmissions. 

It can further be assumed that most of 

heterosexual infections are the result of 

negligent or reckless behaviour. A typical 

scenario is that of a person who 

doesn't know that he or she is infected 

(although a reasonable person in the 

circumstances would have foreseen the 

possibility and would have gone for 

testing) and therefore does not take 

precautions. A second scenario is that 

of a person who knows or suspects that 

he or she is infected, but does not take 

precautions and does not inform his or 

her sexual partners, either because he or 

she does not foresee the possibility of 

infection, or hopes or unreasonably 

believes that this will not occur. A third 

scenario is that of a person who knows 

that he or she is infected, who foresees 

the possibility of infection, but does not 

inform his or her partner or deliberately 

withholds this information and does not 

take precautions because he or she does 

not care whether infection takes place or 

not. In some more extreme cases, 

individuals may make deliberate and 

repeated efforts to spread the infection. 

In many of these instances, for example 

where a person abuses his position of 

trust by concealing high-risk behaviour, 

the uninfected party will see no need to 


8 National policy on HIV/AIDS for learners and educators in public schools, and students and educators in 

further education and training institutions GG 20372 of 10±08±1999, Notice 1926 of 1999. 

9 See, eg, ss 6 and 7 of the Employment Equity Act 55 of 1998. 

10 Which I fully endorsed in 1995 as member of the then project committee on AIDS of the South African 

Law Commission; cf Working Paper 58 of the South African Law Commission (1995) par 4.45 where the 

committee expressed itself not in favour of the creation of a statutory offence aimed specifically at HIVrelated 

behaviour. 

11 Rapport 16-01-2000 10. 

4

protect him or herself. It is clear from 

these examples that ``fault'' could consist 

of one of the following: unconscious 

negligence, conscious negligence, recklessness 

or dolus eventualis, or dolus 

directus. The distinction between dolus 

eventualis and conscious negligence (luxuria) 

is a very fine one. In the first 

instance, the person knows about his or 

her infection and that his or her action 

may infect the other person, but does 

not care or quite happily accepts that 

this may be the result of his or her 

behaviour. In the case of conscious 

negligence, the person knows about the 

possibility of infection but hopes or 

believes that nothing will happen. 

The question may now be asked: How 

does our law deal with these different 

scenarios? And how is the public interest 

protected? 

3.1 Administrative law measures 

It is generally accepted that publichealth 

measures and administrative 

law measures should first be exploited 

before recourse is had to criminal sanctions. 

The Regulations Relating to Communicable 

Diseases and the Notification of 

Notifiable Medical Conditions of 1987 12 

made in terms of the Health Act 13 

provide for isolation and quarantine of 

infected persons if public health is 

endangered. 14 

These regulations have never been 

applied to people with HIV/AIDS, 15 

and have been widely criticised as not 

being appropriate with regard to HIV/ 

AIDS. 16 

Doubts also exist as to their constitutionality 

as they allow for serious inroads 

into the individual's rights for 

extended periods of time at the discretion 

of local authorities and public 

health officials. (This is in contrast to 

criminal convictions which require 

proof of proscribed behaviour beyond a 

reasonable doubt.) 

3.2 Criminal law 

Criminal law has been said to have a 

very limited impact on behavioural 

change, especially where deep-seated 

ideas about identity and intimate aspects 

of sexuality are involved. It allows 

state interference with the private lives 

of people, 17 and it is generally felt that 


12 GN R 2438 in GG 11014 of 30-10-1987. 

13 63 of 1977; cf ss 32, 33 and 34. 

14 If a local authority is satisfied that the spread of HIV constitutes a real danger to public health, it may 

place under quarantine any person with AIDS for 28 days (or longer if so decided by the Minister of 

Health) (regs 2 and 4). A medical officer of health may, upon being satisfied on medical scientific 

grounds that the danger exists of a person with HIV transmitting the disease to other people, order that 

the person be removed to a hospital or place of isolation where he or she is to remain for a period 

determined in the isolation order (reg 14). A medical officer of health has the discretion to instruct that a 

person with AIDS be isolated until he or she is ``free of infection'' or may be discharged without in any 

way endangering public health (reg 17). 

15 Draft regulations, intended to replace the 1987 regulations, were published for comment under Notice 

703 of 1993 in the GG No 15011 of 30-07-1993. Although these were never finalised, they contain no 

material changes with regard to isolation and quarantine. In 1999 the Minister of Health proposed to 

make AIDS a notifiable condition by amending the 1987 regulations, whereby the 1987 regulations were 

in essence confirmed (Draft Regulation No R 485 GG 23-04-1999). 

16 Van Wyk 259±265; 449±452; Cameron and Swanson ``Public health and human rights ± the AIDS crisis 

in South Africa'' 1992 South African Journal for Human Rights 200. 

17 Field and Sullivan Law, Medicine and Health Care 46. 

5

civil procedures are more appropriate. 18 

Some (especially German) writers, however, 

hold that criminal law can make a 

powerful contribution in this respect 

and that the transmission of and exposure 

to HIV should be punished. 19 

3.2.1 Common-law crimes 

Criminal prosecutions can be instituted 

against persons with HIV in order to 

prevent them (and to punish them if 

they do not restrain themselves) from 

the deliberate transmission of or exposure 

to HIV. The common-law crimes of 

murder, assault, crimen iniuria and attempt 

come to mind. In respect of all of 

these intent (in the form of either dolus 

directus, dolus indirectus, or dolus eventualis), 

as well as knowledge of serostatus 

on the part of the perpetrator needs to be 

proved. 

The negligent infection of another 

person will be criminally punishable 

only if that person dies (culpable homicide). 

Our law does not know the crime 

of negligent injury or negligent assault. 

Successful prosecution under common-law 

crimes may be extremely 

difficult 20 due to the specific characteristics 

of HIV infection, the long incubation 

period of AIDS, problems regarding 

proof of causation and intent and those 

surrounding consent and the kind of 

sexual behaviour that is to be regarded 

as socially responsible and acceptable. 21 

Very often there is nobody to lay a 

charge. As stated before, it is sometimes 

also difficult to distinguish between 

intention in the form of dolus eventualis 

and conscious negligence (luxuria). 

It is therefore proposed that a solution 

could be to transform the common-law 

crimes into statutory ones. The statutory 

crimes would then be a clear confirmation 

and exposition of the existing 

common-law position. It would thus 

not be correct to call such legislation 

the criminalisation of conduct. 

The following would be advantages of 

creating such statutory offences: 

(1) A clear signal would be sent that 

certain conduct will not be tolerated. 

(2) The state would show its commitment 

to the protection of the interests 

of society and the constitutional 

rights to life and bodily integrity. 

(3) Such legislation would have a 

strong deterrent effect on the individual 

offender and other potential 

offenders, which in turn would slow 

the spread of the HIV epidemic. 

(4) Maximum penalties would be prescribed 

and people who pose a 

danger could be removed from 

society for fixed periods of time. 

(5) Legal clarity would be obtained on 

aspects such as causation and defences 

(eg whether using a condom 

is a recognised defence or whether 

the sexual partner should also be 

informed of seropositivity). 22 

(6) It would include a definition of the 


18 Which have been instituted in South Africa in the context of HIV infection: cf Venter v Nel 1997 4 SA 104 

(D) where the court granted damages in the amount of R344 399 on the ground that the defendant had 

infected his sexual parther with HIV during sexual intercourse. De Jager ``VIGS: die rol van die strafreg'' 

1991 TSAR 212 and 547 however, comes to the conclusion that the criminal law could play a meaningful 

role. He argues that effective prevention is not the only factor to be taken into account, but that criminal 

sanction could embody society's view of what behaviour should be punished. 

19 Bittman ``Strafrechtliche Probleme im Zusammenhang mit AIDS'' 1987 OÈ JZ 486; Eberbach `ÀIDSrechtliche 

Verantwortung und Vertrauen'' 1987 ZRP 395; Bottke ``Transmission of the AIDS virus as a 

criminal law problem'' 1989 AIDS Forschung 152. 

20 The recent unsuccessful prosecution on a charge of attempted murder of a Natal man who, it was alleged, 

knowingly exposed his sexual partner to his HIV infection, attests to this. 

21 cf Van Wyk 490 ff; Van Wyk ``Die grense van geheimhouding ten opsigte van VIGS'' 1992 De Jure 141 

144; Herzberg ``Die AIDS-Infizierung als Straftat'' 1987 AIDS Forschung 52. 

22 cf the Canadian case R v Cuerrier [1998] 2 S.C.R. 371 where this question was referred to, but not decided. 

6

specific unlawful act or conduct or 

omission which is prohibited. 

(7) it would be better publicised than 

common-law crimes, and publicity 

given to prosecutions would be a 

further deterrent. 

The two arguments most often raised 

against the use of statutory offences and 

of criminal sanctions in general, are the 

following: 

(1) The successes gained with encouraging 

voluntary testing and counselling 

would be lost if people knew 

that their criminal liability depends 

on their knowledge of their own 

serostatus. The epidemic would be 

driven underground and infected 

people would be alienated. Criminal 

law would therefore have a negative 

effect on the preventive programmes 

of the health authorities. The counter-argument 

is that the possibility 

of this occurring already exists in 

terms of the common-law crimes, 

and that the creation of a statutory 

offence would not change the situation 

in any way. It may further be 

argued that fear of possible future 

prosecution for something which 

may never occur, is most unlikely 

to deter anyone from testing and 

seeking whatever treatment is available. 

23 

(2) A second argument is that the threat 

of criminal sanction will not deter 

people who are already dying of 

AIDS. The counter-argument to this 

is that many people with HIV are 

living longer and relatively healthy 

lives, and that the fear of punishment 

and further misery may indeed 

act as a powerful deterrent. 

3.2.2 Criminalisation of negligent/ 

unintentional behaviour 

Another option is the criminalisation of 

negligent or unintentional behaviour. 

By criminalising behaviour, a decision 

is taken to proscribe conduct as a 

crime. 24 Our common law does not 

punish negligent harm or negligent 

injury/endangerment, since negligent 

behaviour is normally not regarded as 

blameworthy. This general approach 

may, however, be adapted when the 

public interest is seriously threatened by 

negligent behaviour. Our common law 

does punish the negligent killing of 

another person, and on occasion the 

legislature has intervened Ð in the case 

of firearms and motor vehicles, which 

are regarded as dangerous tools and a 

threat to the safety of others which 

require special diligence in their use. 

The legislature has in these instances 

decided that the actual and potential 

incidence of negligent driving and of 

negligent use of firearms is substantially 

damaging to society. 

The Road Traffic Act 25 provides that 

no person shall drive a vehicle on a 

public road recklessly or negligently. 26 

A fine not exceeding R24 000 or imprisonment 

for a period not exceeding 

six years or both the fine and imprisonment 

may be imposed for reckless 

driving. 27 For negligent driving, a fine 

not exceeding R12 000 or imprisonment 

for a period not exceeding three years or 

both such fine and imprisonment, may 

be imposed. 28 7 


23 Holland ``HIV/AIDS and the criminal law'' 1994 Criminal Law Quarterly 279. 

24 Burchell and Milton Principles of Criminal Law (1997) 28. 

25 29 of 1989. 

26 s 120(1); cf s 120(2). 

27 s 149(5)(a). 

28 s 149(5)(b).

Handling a firearm with reckless disregard for the 

safety of any person Ð an analogy. 

The Arms and Ammunition Act 29 

provides that any person who discharges 

an arm and thereby negligently injures 

or endangers the life or limb of another 

person, or who handles an arm in any 

negligent manner, whether that arm 

discharges or not, is guilty of an 

offence. 30 

The Firearms Control Bill which is 

currently being debated, provides that a 

person who causes bodily injury to any 

person by negligently using a firearm, 

who discharges or otherwise handles a 

firearm in a manner likely to injure or 

endanger the safety of any person or 

with reckless disregard for the safety of 

any person, or who has a loaded firearm 

under his or her control in circumstances 

where it creates a risk to the 

safety of any person and who does not 

take reasonable steps to avoid the 

danger, is guilty of an offence and may 

be sentenced to five years' imprisonment. 

31 

The preamble to the Firearms Control 

Bill would be equally appropriate for an 

Act criminalising the negligent transmission 

of or exposure to HIV. (The 

comparison has indeed on occasion 

been made that having unprotected sex 

when HIV-positive, is like shooting at 

someone with a loaded gun.) 32 The 

preamble of the Bill refers to the right 

to life and security of the person, 

including the right to be free from all 

forms of violence. It further states that 

the adequate protection of such rights is 

fundamental to the well-being and the 

social and economic development of 

every person and that it is the constitutional 

duty of the state to respect, 

protect, promote and fulfil the rights of 

individuals as enshrined in the Bill of 

Rights, including the right to life and 

security of the person. It sets out the aim 

of the envisaged legislation as the 

provision of a more secure environment 

in which there is greater safety and 

protection for everyone. The preamble 

also refers to the state's responsibility to 

ensure that the envisaged legislation is 

effectively implemented in the interest 

of the general public and in the interest 

of the security of the state. 

Crimes are created to protect certain 

interests, such as human rights and the 

collective welfare. Criminal law is a 

mechanism that coerces members of 

society, through threat of pain and 

suffering, to abstain from conduct 

which is harmful to public interests. 

The community is entitled to protect its 

interests at the expense of the rights of 

the individual, but the interests must be 

so valuable that peaceful societal existence 

cannot be guaranteed without 

their protection. Such interests would 


29 75 of 1969. 

30 s 39(l). 

31 clause 130(3)(a). 

32 Business Day 23-10-1999. 

8

include human life, physical integrity, 

and dignity. 

The decision to criminalise, and 

thereby to use society's most drastic 

legal sanction, implies a cost to society 

and the individual involved. The benefits 

and social gains to be obtained from 

the successful prevention or reduction of 

the conduct in question, have to be 

commensurate to the social, human 

and economic cost of recognising the 

particular crime. Otherwise the decision 

to criminalise cannot be justified. 33 

In other words, the criminalisation 

has to be justified in terms of the 

Constitution of the Republic of South 

Africa. 34 The limitation of the basic civil 

rights of liberty and property of the 

accused may be limited only to the 

extent that the limitation is reasonable 

and justifiable in an open and democratic 

society based on human dignity, 

equality and freedom, taking into account, 

inter alia the nature of the right, 

the importance of the purpose of the 

limitation, the nature and extent of the 

limitation, the relation between the 

limitation and its purpose, and whether 

less restrictive means exist to achieve 

the purpose. 

No act should therefore be criminally 

proscribed unless its incidence, actual or 

potential, is substantially damaging to 

society; no act should be criminally 

prohibited where its incidence may be 

adequately controlled by forces other 

than the criminal process, and no law 

should give rise to social or personal 

damage greater than it was designed to 

prevent. 35 

In Germany, (a country and society 

which would undoubtedly be regarded 

as open and democratic and based on 

human dignity), the Criminal Code 

provides that whoever causes bodily 

harm to another through negligence 

shall be punished by up to three years' 

imprisonment or a fine. 36 This provision 

is commonly applied to reckless 

driving and medical negligence, and is 

regarded as important in view of the 

increase in traffic and in the use of 

dangerous instruments in specialised 

professions. This provision is wide 

enough to apply also to negligent bodily 

harm in the case of HIV infection. It is 

interesting to note that Germany, where 

HIV/AIDS is no longer an issue, has a 

provision under which negligent harm 

brought about by HIV infection may be 

dealt with. 

The ``negligence'' mentioned in the 

German Criminal Code could consist of 

an infected person knowing about his or 

her infection, but failing to take the 

steps a reasonable person would have 

taken to prevent infection, perhaps 

because he or she hopes that infection 

will not occur (conscious negligence). 

Negligence could also consist of an 

infected person not ascertaining his or 

her serostatus in circumstances where a 

reasonable person would have gone for 

testing. Persons who ought to know or 

who suspect that they have HIV would 

fall into this category. This would mean 

that persons who should have known of 

their HIV infection may be guilty of an 

offence if they infect other persons 

(unconscious negligence). 

There has apparently been no case in 

Germany dealing with negligent bodily 

harm in case of HIV infection through 

sexual intercourse by a person who was 

not aware of being HIV positive. The 

opinion has been expressed in German 


33 Burchell and Milton 28. 

34 108 of 1996, s 36. 

35 Cf the Canadian Committee on Corrections quoted in Aspects of the law relating to AIDS: the need for a 

statutory offence aimed at harmful HIV-related behaviour Discussion Paper 80 of the South African Law 

Commission 42; Burchell and Milton 29. 

36 s 229. 

9

legal literature that there is no obligation 

on a person to undergo regular blood 

tests even if such person belongs to socalled 

``high-risk groups''. 37 Although 

this term is no longer acceptable, this 

view would probably also be applicable 

to people who follow high-risk lifestyles. 

4 Conclusion 

It is interesting to note that all the 

examples of legislation in other countries 

quoted in Discussion Paper 80 of 

the South African Law Commission 38 

require actual knowledge of HIV infection 

(ie conscious negligence) before a 

person will be held liable, whether for 

the intentional or negligent transmission 

of or exposure to HIV. This is also 

in line with the German practice in this 

regard. South Africa could well consider 

taking this route. However, such an 

approach may again give rise to the 

argument that criminal sanction of 

knowingly exposing others to HIV will 

have the effect that people who believe 

themselves to be at risk of being 

infected, will not go for testing, and 

that they will prefer not to have their 

HIV status established. 

The possibility of creating a crime of 

negligent injury has been discussed in 

South African legal circles, and cogent 

arguments for and against the creation 

of such a crime have been raised. 39 

However, what is at issue now, is not 

the creation of such a general crime in 

South Africa, but rather a much more 

specific one aimed at preventing the 

negligent spread of HIV. 40 If negligence 

in this instance is considered to include 

both conscious and unconscious negligence, 

this would mean that people may 

be held accountable also for failing to go 

for HIV testing when they had reason to 

believe, or should have known, that they 

are infected. Ignorance will no longer be 

bliss. The conviction that `às long as I 

don't know, I may do as I please, but as 

soon as I am tested, I may be held 

criminally accountable'' will no longer 

be valid, and the argument about criminal 

law discouraging testing will no 

longer hold. This approach may even 

have the effect that more people will go 

for testing than at present. 

In the light of this, it is my view that 

we should seriously consider criminalising 

the negligent transmission of and 

exposure to HIV as a uniquely South 

African solution to the problem of 

harmful HIV-related sexual behaviour. 


37 cf Wokalek and KoÈ ster `ÀIDS und FahrlaÈ ssigkeitsstrafbarkeit'' 1989 Medizinrecht 286. 

38 Aspects of the law relating to AIDS: the need for a statutory offence aimed at harmful HIV-related behaviour 142± 

147. 

39 Morkel ``Nalatige aanranding: 'n onding'' 1986 Tydskrif vir Regswetenskap 84 and Morkel Nalatigheid as 

grondslag vir strafregtelike aanspreeklikheid LLD thesis (UFS) (1977 is not in favour of such a crime. In Sv 

Matle 1984 3 SA 748 (NC) Steenkamp J raised the question whether the legislature should not perhaps 

consider creating the offence of negligent assault, in view of the absence of any logical or equitable 

considerations against it, and in view of the anomalies which arise. Cf also Snyman Strafreg (1992) 456 

where he expresses himself against the creation of a (general) crime of negligent assault. 

40 cf Snyman's comments on Discussion Paper 80 (dated 11-03-1999) in which he expressed his support for 

the creation of a specific crime providing for liability for the negligent spread of HIV. 

10

Stigmatising HIV/AIDS, 

stigmatising sex? A reply to 

Professor Van Wyk 

Frans Viljoen, Professor, University of 

Pretoria 

Mongwadi o fetola le go dumelelana le seo se 

ngwadilwego ke Prof Van Wyk mabapi le 

molato wa go fetetsÏana ka tswatsÏi ya Aids. 

Frans Viljoen o hlalosa ka fao Aids e tsenago 

motho ka gona ka mokgwa wa thobalano. O 

hlalosa gore ge phetetsÏano e dirilwe, go 

swanetsÏe go lebelelwe dilo tsÏe di latelago: 

motho yo a naganago goba a tseba gore o na 

le HIV/AIDS, yo a robalago le yo mongwe(ka 

mokgwa ofe goba ofe wa thobalano) a se a 

apara Khondomo, gomme a mo hlatsÏetsÏa 

(splitting of semen), o swanetse gore a fegwe 

molato. Mongwadi hlalosa ka fao molato wa 

go fetetsÏana ka bohloko bjo o swanetsÏego gore 

o be we goba o ngwalwe ka gona. 

Lena yimpendulo nemibono ehlaba imibono 

eyethulwa kule ngxoxo engenhla, yokusungulwa 

komthetho wokwandiswa kwegciwane 

legculazi. Umbhali ukavumelani 

neze nokusungulwa komthetho ofana nalo 

ngoba uzogqugquzela uthuthukise ukubandlululwa 

kwabantu abanali gciwane legculazi, 

nalabo bantu abathandana bebulili 

bunye okanye abasebenzisa umzimba ukuzuza 

imali. Imibono eqhamuka lapha 

ukuthi kungaba kuhle futhi kusize ukufundisa 

umphakathi ngokugwema ukuziphatha 

budedengu kwezocansi kanye 

nokusetshenziswa kwejazi lomkhenyana 

(ikhondomu) njalo nje. 

Codicillus XXXXI No 1 

In her contribution Christa van Wyk 

makes two principal recommendations: 

1 Where harmful HIV-related behaviour 

already constitutes a commonlaw 

offence, the common law 

should be transformed into statute. 

Put differently, legislation should be 

adopted to spell out clearly which 

common-law offences HIV positive 

persons may commit and can be 

found guilty of. 

2 However, as some harmful conduct 

is not covered by the common law, 

11

``serious consideration'' should be 

given to create a new offence. This 

relates to negligent injury. A new 

statutory offence should be created 

to punish negligent exposure to and 

transmission of HIV. Persons who 

``had reason to believe, or should 

have known, that they are infected'', 

but do not undergo a test 

and (presumably) have unprotected 

sex, would be guilty of negligent 

assault. This amounts to criminalisation, 

as a new offence will be 

created. 

1 Recommendation 1: 

Transforming the common law 

into statute 

There are advantages and disadvantages 

to her first recommendation. 

1.1 What are the benefits of the 

transformative approach? 

The greatest potential benefit lies in the 

conversion of the imprecise, complicated, 

nebulous and obscured common 

law into the clear and precise form of 

statute. Statute, so the theory goes, is 

more exact, can clarify issues and will 

be well published. What is already 

criminal at common law must be made 

explicit. 

But the motivation of ``transformation'' 

must be to reinforce the aims of 

general education and information campaigns. 

The main aim of the AIDS 

campaign is, or should be, to prevent 

the spread of the disease. The main 

method used in the campaign is educating 

people that they must have sex with 

condoms. If the criminal law has anything 

to contribute to the campaign 

against AIDS, it must be to reinforce 

this message. The message sent by the 

criminal law must therefore be simple 

and clear, accessible and easy to understand. 

Medical evidence today shows that 

HIV infection is most likely to happen 

through vaginal and anal sex. The crime 

that may be created should address this 

conduct, and should say ``have sex with 

a condom'' in these situations, unequivocally. 

The common law needs to be 

made explicit and clear. Let's not call 

cocks roosters here, or the same ills of 

the common law will prevail in the form 

of statute. If a crime is created, it should 

be specific, and address the main form 

of transmission. It should be possible to 

implement the measure effectively. If 

this route is followed, a ``penetrative'' 

and ``receptive'' offence may be created. 

The ``penetrative offence'' should, in 

my view, have the following constituent 

elements: 

. A man with HIV and who knows that 

he is HIV positive 

. who penetrates without wearing a 

condom the vagina or anus of another 

person 

. and emits semen 

is guilty of an offence. 

The first element requires that there 

must be conscious knowledge, in other 

words, the person must have been tested 

and informed of a positive (`'negative'', 

from his point of view?) result. Strict 

liability, in terms of which only proof of 

HIV infection, and not knowledge, is 

required, should not be countenanced. 

The second element requires that 

penetration must have taken place. This 

would exclude other forms of sexual 

play (such as oral sex and mutual 

masturbation). It is almost certain that 

non-penetrative forms of sexual interaction 

pose a very low risk of HIV 

transmission. It's no use talking about 

`ùnprotected'', or ``taking measures'' in 

defining the offence. It should be clear 

that the offence lies in penetration 

without a condom. 

Emission should be the last requirement. 

Not only penetration is required, 

12

ut emission as well. This is so because 

the risk attached to penetration as such 

is minimal, compared to the risk accompanying 

emission of semen in the 

vagina or anus. 

The question arises whether consent 

or informed consent could serve as a 

defence. The fact that HIV positive 

status had been revealed and that the 

other partner accepted the risk serves as 

a defense in at least one state of the 

USA. 1 To argue on the basis of the 

common law 2 that a person cannot 

consent to his or her own death in this 

context, is artificial. I do not think the 

situation of two consensual partners is 

analogous to that of a pact between a 

potential victim and his or her assassin. 

The consent in such a situation is to 

sexual pleasure, and not to death. 

The ``receptive'' offence should have 

the following elements: 

. A person who is HIV positive and 

who knows that he or she is HIV 

positive 

. who allows himself or herself to be 

penetrated without a condom (per 

vagina or per anus) 

is guilty of an offence. 

In both cases conduct is targeted 

rather than consequences. The major 

problem with prosecution of the common-law 

offences requiring a causal 

element will thus be circumvented. 

The minimum and maximum sentences 

for the two offences should differ. 

As the first category of conduct is more 

likely to lead to infection, it should carry 

a more severe penalty. 3 

1.2 What are the disadvantages of 

this approach? 

The most obvious problem is that one 

area of the common law is singled out 

for clarification and codification. The 

common law covers most of the relevant 

conduct already, in the offences of 

murder, attempted murder, culpable 

homicide, assault in its various forms, 

fraud and rape. 4 So far there has been a 

very limited number of complaints 

leading to prosecutions. If there had 

been such a dire need for the criminal 

law to play a pronounced role, one 

would at least have expected the common 

law to have been used and tried out 

on numerous occasions. This has not 

happened. To now argue that the common 

law is somehow lacking invites the 

suspicion that there is another motive 

for this step. 

The question must be what goal is 

achieved by taking this route. Why are 

there so few prosecutions for HIV conduct? 

Is it the case that the common law 

has not been used because victims had 

considered the specified conduct of HIV 

positive people to be lawful? Surely not. 

Are HIV positive people engaging in the 

specified conduct thinking that their 

conduct is lawful? Surely not. Will 

spelling out the common-law position 

make any difference to the situation? 

Will it lead to more complaints, or will 

it deter flagrant offenders with little fear 

of death from engaging in this conduct? 

Will the only result of ``transforming'' 

the common law not be to stigmatise 

people with HIV as people more likely 

to commit offences than uninfected 

people? 


1 See § 39±13±109 of the Tennessee (US) Annotated Code 1994, which states that it is a defence that ``the 

person knew that the infected person was infected with HIV, knew that the action could result in infection 

with HIV, and gave advance consent to the action with that knowledge''. 

2 See S v Robinson 1968 (1) SA 666 (A). 

3 It remains an issue whether imprisonment is the most appropriate form of punishment. It should also be 

borne in mind that prisoners with HIV are, according to the Constitution, entitled to a higher level of 

medical treatment by the state than non-prisoners. 

4 See eg the Canadian Supreme Court's judgment in R v Ceurrier [1998] 2 SCR 371. 

13

More seriously, taking this route will 

send out the following message: The 

main cause of the spread of HIV is 

deliberate infection, by people who 

know that they have HIV. This does 

not square with the facts. It may create a 

sense of false security and complacency 

among those who do not know that they 

are HIV positive, and discourage them 

to use condoms. The impression will be 

created that by punishing some we will 

protect ourselves. The main message, 

that everyone is at risk, and that everyone 

should engage in ``safe sex'', will be 

undermined in the process. 

Prevention should be taken seriously 

In my view the underlying problems 

associated with HIV prosecutions will 

persist even if these offences are legislated. 

The persisting problems are the 

difficulty of ``policing'' and potential 

evidentiary problems. There still needs 

to be proof that the person was HIV 

positive, knew about his or her status, 

that penetration and emission took 

place. Usually, as far as the conduct 

itself is concerned, there will only be a 

single witness. 

Another difficulty relates to the fact 

that human beings and human sexual 

intimacy are involved. The fear of being 

stigmatised by society and the legal 

system may deter victims from laying 

complaints. In this respect HIV prosecutions 

are similar to rape prosecutions. 

The incidence of rape is believed, by 

most, to be unreported. The reason is 

amongst others the treatment by the 

justice system, and the stigma society 

still attaches to the victim alleging rape. 

This prejudice will even be more pronounced 

in the case of HIV, where the 

sexual encounter took place voluntary. 

Only afterwards, the presumably infected 

finds out that the sexual partner 

is HIV positive. 

Creating this offence will further 

hamper the fostering of an environment 

in which openness and frank discussions 

are encouraged. In my view the 

proposal is premised on a general 

frustration arising from an inefficiency 

to combat crime, and frustration at the 

continued spread of the disease. But the 

answer to failing health measures is not 

to enlist the criminal law system. 

2 Recommendation 2: 

Criminalising negligence 

The main problem in this respect arises 

in relation to the question when someone 

should have had himself or herself 

tested. Who, in this day and age, should 

have reason to believe that he or she can 

be or is HIV positive? Who, in other 

words, can be found guilty of negligent 

assault? Two answers seem possible: 

. People belonging to ``high-risk'' 

groups or engaging in ``high-risk lifestyles'' 

should reasonably suspect that 

they could be HIV positive. Such an 

offence could therefore easily lead to 

the victimisation of particular groups 

± sex workers and gay men, for 

example. The danger of selective 

enforcement looms large. Creating 

14

the suggested offence may be construed 

as an invitation to harass these 

``targeted groups''. What is the societal 

gain of such targeting, in the face 

of realities that the virus spreads 

mostly through heterosexual sexual 

intercourse? 

. If this is not the interpretation, the 

only other answer is that every sexually 

active person should know that 

he or she may be HIV positive. Is it 

not the essence of the AIDS awareness 

campaign that everyone should 

have sex with a condom? The effect of 

such a statute will therefore be to 

stigmatise sex, and to what effect? 

What is the societal gain of prosecuting 

husbands who unknowingly infect 

wives, or consenting adults 

engaging in sex without a condom? 

What will an appropriate sentence be 

in such instances? Is there not a 

conscious risk-taking involved in 

such conduct? Should everyone not 

know that there is some possibility, 

however remote, in any sexual encounter 

in which they involve themselves? 

In other words, we are all 

potential criminals. 

Another problem if this approach is 

followed, is that any knowledge of HIV/ 

AIDS is dangerous. People could consider 

it ``safer'' to avoid all knowledge, 

all information, all thinking of HIV/ 

AIDS. The less you know of HIV/AIDS 

the less your chances are of ``having 

reason to believe'' that you are HIV 

positive. This will obviously work counter 

to the main thrust on which public 

health campaigns are based ± information 

and education. 

The constitutional compatibility of the 

second possibility is also less certain 

than the first. The aim of such a 

measure must be weighed against its 

impact on human rights. 5 The question 

must be considered whether less restrictive 

measures cannot attain the same 

results. I would contend that the potential 

impact on the right to privacy and 

dignity, for example, is quite severe. 

The aim of the measure would presumably 

be to serve as a deterrent, and to 

protect society from the further spread of 

the disease. It remains an open question 

whether the creation of such a statutory 

offence will deter, and whether it will 

reduce the spread of the disease. Let us 

not forget that this is a proposal for a 

`ùniquely South African solution''. 

Maybe there is a good reason why other 

states have not followed this route. 

Introducing such legislation would require 

much more detailed social science 

research. 6 The measure must also be 

rationally connected to the purpose it 

sets out to attain. I argue that the 

proposed statute fails the constitutional 

test in this respect, and the inherent 

difficulty to enforce the proposed offence 

means that both its deterrent and 

protective value are doubtful. 

3 Conclusion 

My comments should not be understood 

to deny that the criminal law has any 

role to play in this age of AIDS. My 

argument is that the existing common 

law has not been used sufficiently. For 

understandable reasons, perhaps. ``Bedroom 

offences'' are notoriously difficult 

to police. But the existing common law 


5 S 36 of the 1996 Constitution. 

6 In fact, if this route is taken, it could be a good illustration of how not to enact laws. Laws are too often 

made as an exercise in abstract logic, and are not sufficiently based on social facts. Law reform should be 

based on data about how the socio-economic benefits of the proposed legislation's measures are likely to 

outweigh their socio-economic costs. It should also be informed by an assessment of the resulting law's 

social impact. 

15

can certainly be used to convict a 

flagrant and persistent infector. 

Transforming the discourse on HIV/ 

AIDS into a criminal law discourse will 

be at the expense of cultivating a 

discourse of openness and tolerance. It 

will polarise society into two groups: 

`ùs'', the innocents, and ``them'', the 

guilty. If Van Wyk's proposal of negligent 

injury is accepted, it will turn 

society against itself, as all sexually 

active people will stand the risk of 

becoming potential criminals, merely 

by virtue of having sex. 

Rather, the answer lies in facing up to 

the realities. The HIV virus is spreading 

because information aimed at prevention 

is not getting through or taken 

seriously. Policy makers and those 

informing public policy should focus 

on creating an enabling environment in 

which people will feel free to ``come 

out'' with HIV/AIDS and not on questioning 

common scientific wisdom, 

masquerading with red ribbons, or on 

engaging in symbolic actions with a 

counter-productive effect. 

16

Legal education and 

receptiveness to change * 

Cheryl Gillwald, Deputy Minister of Justice 

and Constitutional Development. 

Ye ke polelo kopana yeo e filwego ke 

Mohumagadi Cheryll Gilwald yo e lego 

letsogo la tona ya kgoro ya tsa toka Dr 

Penuell Maduna pulong ya semmusÏo ya 

lefapha la tsÏa molao yunibesithing ya 

Afrika-Borwa ka la 03 Matshe 2000. Mohumagadi 

Cheryll o be a bolela ka mathata ao 

go kopanwago le ona mo molaong le go se 

lekalekane ga baemedi bao ba tsÏwelelago 

dikgorong tsÏa tsheko. Mohumagadi Cheryll 

o boletsÏe le ka mokgwa woo go nyakegago 

diphetogo mo molaong le gore ke maikarabelo 

a barutwana gore ba dire diphetogo 

tsÏeo. 

Lapha kwethulwa inkulumo yePhini loMphathiswa 

wezeMthetho nokuThuthukiswa 

kwawo uCheryl Gillwald, eyethula lapho 

kwakuvulwa khona izifundo zezomthetho e- 

Unisa, mhlaka-03 Mashi 2000. Inkulumo 

yoMphathiswa yaphawula yagqugquzela 

kakhulu ngesidingo sokuguquka nokuvuleka 

kwabafundi bezomthetho okuhambisana 

nesimo esisha sempilo ephilwa kule minyaka. 

Wathi ukuveza kancane nezibonelo 

zalezi zinguquko abhekise kuzona. 

Thank you for inviting me to be the 

guest speaker at the annual opening of 

your law faculty. I am honoured and 

delighted to have this opportunity to 

share with you the vision of the Ministry 

and the Department of Justice and 

Constitutional Development. I also bring 

to you the apologies of my Minister, 

Dr Penuell Maduna, who is unable to be 

with you today. 

I would like to use this occasion to 

traverse with you the landscape of the 

legal profession in South Africa. As law 

students and teachers of law, you are 

important and valuable stakeholders in 

the justice network. As the seedbed of 

the legal profession, law faculties play a 

pivotal role in upholding the status and 

standing of the legal profession. 

When trying to establish a justice 

system that promotes equity and excellence, 

the quality of legal education is an 

extremely important consideration. But 

probably the most important thing that 

students can learn from their teachers is 

receptiveness to change itself. Someone 

once said that the only predictable and 

constant element of life is change. Your 

personal life, your profession, and your 

social, political and cultural environments 

± these are all subject to the 

vagaries of change. And your ability to 

use your learned skills in adapting to 

change will profoundly influence your 

personal happiness, professional success 

and environmental relevance. 

Before I share with you the challenges 

that face the legal profession, I want to 

recall a great South African storyteller's 

account of his first days in the legal 

profession. In his autobiography, ``Slovo, 

the Unfinished Autobiography'', 


* Address by the Deputy Minister of Justice and Constitutional Development, Cheryl Gillwald (MP) at the 

annual opening function of the Law Faculty of Unisa on 3 March 2000. 


17

South African freedom fighter and 

member of the first post-apartheid cabinet 

gave the following graphic account 

of his first day in court. Subsequently, 

he served 12 years at the Johannesburg 

Bar before political persecution forced 

him into exile. This excerpt is called 

Fragments from the courts and it goes like 

this: 

My courtroom career started somewhat 

inauspiciously. We emerged from law 

school with our minds crammed full of 

legal theories and case law but totally illequipped 

to carry out the advocate's main 

function of preparing and pleading a 

real case before a live tribunal. One felt 

like a fully certified motor mechanic who 

sees an actual engine only when he lifts 

the bonnet on his first repair job. It was 

left to each of us to pick up the essentials 

of court craft as best we could. The little I 

had picked up came from observing in the 

Magistrates' Court the rather flamboyant 

style of my solicitor-employer, Jack Levitan. 

My very first Supreme Court trial was 

before Mr Justice Malan whose reputation 

of terrorising junior counsel had not yet 

reached me. The charge was one of 

housebreaking and theft. The owner of 

the warehouse had been asked to step out 

of the witness box in order to examine and 

identify the pile of exhibits that filled the 

well of the court. While he was doing so 

and for reasons, which now escape me ± 

perhaps it was to assure my client that I 

was really on the job ± I got up and 

started ambling towards the witness. 

Before I had completed this manoeuvre, 

I felt burning eyes piercing my back, and 

I turned to face the judge. For a moment 

or two he continued staring at me in 

absolute silence, and then the highpitched, 

sermon-like words poured upon 

me: ``Mr Slovo, in case you are still 

suffering from an illusion of your childhood, 

I'll have you know that this 

courtroom is not a circus where every 

clown can jump into and out of the arena 

at will. Please return to your seat 

immediately.'' 

It took me some years to get to know the 

peculiarities and eccentricities of the 

judges ± personal quirks that, in borderline 

cases, sometimes determined the 

outcome of a trial or influenced the 

severity of the sentence. Malan must have 

spent part of his childhood sticking pins 

into flies, and junior counsel now 

obviously provided him with a substitute 

sport. But fortunately for litigants, his 

whiplash tongue and unsmiling darts of 

humour were generally directed against 

his erstwhile colleagues and not their 

clients. 

But eccentricities aside, the judges 

(including Malan) saw themselves as the 

personification of the lady of the law who 

holds aloft the evenly balanced scales of 

justice. It has always struck me that, in 

blindfolding the lady, the original creator 

of this symbol may have been trying to 

make a statement more profound than we 

lawyers understood; if the scales of justice 

were skilfully tipped she would be none 

the wiser! And even the most humane 

members of South Africa's all-white 

judiciary were blind to the fact that the 

scales of justice that they were holding 

were permanently unbalanced in favour 

of their white compatriots. Nelson Mandela 

said it all when he told the 

magistrate trying him in 1962 that every 

aspect of the administration of justice in 

South Africa made him feel a black man 

in white man's court ... . 

... At the personal level, my 12 years of 

the hurly-burly of legal practice were 

satisfying and politically useful. The 

adversary system of court confrontation, 

with its contest of tactics and competing 

styles of forensic performance, allowed for 

creativity and some scope for self-expression. 

Each trial posed its unique challenges, 

and an unending variety of civil 

and criminal cases contained elements of 

pathos, sometimes tragedy and, every now 

and then, high comedy. 

18

That was Joe Slovo's experience half a 

century ago. 

Tumultuous decades later, the whole 

of South Africa is still on a roller coaster 

ride of transition, transformation and 

renewal. I think it's an exhilarating 

journey of growth and discovery. 

In the six years since South Africa's 

first ever democratically elected government 

came to power, we have been 

seized with the vision of a justice system 

that protects the interests of all South 

Africans equally. 

In the light of the glorious vision of 

our new Constitutional democracy, the 

courts and the legal system of 1994 

became the new targets of our focus and 

concern. The problems seemed insurmountable: 

There were the glaring inequities: 

an apartheid driven body of 

law; a justice system skewed to serve 

white interests; and the traditional dominance 

of white males over every aspect 

of the criminal and civil justice system. 

Even a cursory examination of the 

legal profession, as it was in the past 

and continues to be to this day, reveals 

great inequalities and anomalies. I think 

it is important for me to share this 

problem analysis with you: 

± The legal profession does not represent 

the diversity of South African 

society. The number of black lawyers 

in private practice and in the public 

service sector remains largely unrepresentative 

in absolute terms and in 

terms of gender and race. While the 

number of African men has increased 

slightly in recent years, black 

women remain almost absent from 

or under represented in all these 

structures. 

± In the chambers of large law firms, 

black people, especially black women, 

continue to be the exception 

rather than the rule. 

± The Bar councils and law societies 

continue to show little demographic 

diversity. 

± The distribution of practising lawyers 

who render legal services to the 

public is still skewed. While most 

lawyers practise in the cities where 

they service corporations and relatively 

wealthy people, rural attorneys, 

like the rest of the profession, 

tend to be white, male and Afrikaans-speaking 

and they generally 

provide legal services to the white 

farming and business communities. 

There are very few lawyers who 

service the areas in which most 

blacks live ± the townships and rural 

settlements. The few such lawyers 

that do exist are generally underresourced. 

± Disadvantaged law graduates experience 

difficulty entering the legal 

profession and establishing themselves 

as successful legal practitioners. 

± The broad middle class of South 

African society, although not indigent, 

is not able to afford the fees 

which practising lawyers charge. 

± Practising lawyers are not sufficiently 

involved in providing legal 

aid services to indigent persons. 

± Paralegal practitioners are not recognised 

or regulated by statute, despite 

the fact that they have been rendering 

legal services to needy communities 

for many years. 

± Until the formation of the office of 

the National Director of Public Prosecutions, 

prosecutors, particularly 

those serving in the lower courts, 

were not recognised as a fullyfledged 

branch of the practising legal 

profession. 

± Lawyers employed by commercial 

corporations, governmental agencies 

and non-governmental organisations 

are not recognised or regulated by 

statute as members of the practising 

legal profession. 

± There is a lack of equality within the 

legal profession in respect of qualifi- 

19

cation requirements for admission to 

legal practice. This, of course, creates 

the highly undesirable perception 

that some lawyers enjoy superior 

status to others. 

More pertinently: 

± Until recently, the academic qualifications 

for admission to the attorney's 

and advocate's professions 

were different in that attorneys could 

be admitted with an undergraduate 

BProc degree, while advocates required 

an LLB, which was offered 

only as a second degree. That has 

now changed. 

± Attorneys are required by statute to 

undergo a two-year period of vocational 

training (eighteen months if 

they attend the Practical Training 

School). Yet, there is no statutory 

vocational training period for advocates 

and the vocational training 

period for advocates who want to 

become members of the constituent 

Bars of the General Council of the bar 

is six months or less. 

± Attorneys are obliged by statute to 

pass an admission exam before they 

can be admitted to practice, whereas 

advocates can be admitted to practice 

without subjecting themselves to an 

admission exam and are required to 

pass the bar exam only if they want 

to be a member of one of the 

constituent Bars of the General Council 

of the Bar. 

± Corporate legal advisers are not 

required to do any practical vocational 

training or pass any vocational 

exams. 

± Lawyers who work for the Department 

of Justice and appear on behalf 

of the state in criminal matters as 

prosecutors in the lower courts, do 

not have to be admitted as legal 

practitioners and often become magistrates 

without ever having been 

admitted as legal practitioners or 

ever having had any experience of 

civil-court work. 

There are also anomalies in the ways in 

which various branches of the profession 

are regulated: 

± Attorneys are obliged by statute to be 

members of a law society which 

exercises professional control over 

them, whereas membership of societies 

of advocates is voluntary. Thus 

many advocates are practising without 

being subject to the control of any 

regulatory authority other than that 

of the High Courts. 

± Until recently attorneys were precluded 

from appearing in the High 

Court and still have to apply to the 

Registrar of the High Court for the 

right to appear. 

± Corporate legal advisers are not 

considered to be part of the practising 

legal profession and may not be 

admitted as practitioners of the 

courts, nor may a corporate legal 

adviser represent his or her employer 

in the High Court, although he or she 

may do so in the Magistrates' Courts. 

± Until recently judicial office in the 

superior courts was reserved almost 

exclusively to advocates who had 

attained the rank of Senior Council. 

Judicial office is still not considered 

by most attorneys or prosecutors to 

be a career option. 

± The Law Societies, which were structured 

along provincial and former 

homelands lines, are clearly out of 

step with our new provincial dispensation. 

± Once the restructuring of the High 

Courts has taken place, the Bar 

Councils will also find themselves 

to be inappropriately structured. 

± And lastly, misconduct and corruption 

on the part of legal practitioners 

are not always adequately investigated 

and acted upon, as is evidenced 

by the recent spate of 

20

complaints against the conduct of 

attorneys handling Road Accident 

Fund claims. This matter, which 

had given rise to considerable public 

concern and debate, was heard before 

the Pretoria High Court recently. 

Judgment is expected soon. 

It is evident that the legal profession 

has to be transformed in order for it to be 

able to meet the needs of all the people 

of South Africa. As Government, we 

have chosen to monitor closely and 

actively encourage transformation in 

the legal profession. 

The task that lies ahead for us is quite 

clear: 

± We must actively participate in making 

the legal profession fully representative 

of the diversity of the 

society in which we live. 

± We have to make the profession 

more accessible to the public and 

we will continue to engage the many 

progressive legal organisations that 

associate themselves with this objective. 

± We have embarked on a process of 

reform aimed at bringing the legal 

profession in line with our new 

constitutional framework. 

± And most importantly, we have and 

will continue to overhaul the statutes 

that regulate the profession, bringing 

them into line with our new Constitution. 

I have not brought these problems to 

your attention to frighten you off or to 

discourage you in any way. On the 

contrary, I firmly believe that change 

represents opportunity and I strongly 

urge you to seize the moment, we have 

so much to look forward to! 

Consider this: A mere ten years ago 

the international community regarded 

our legal system with derision and 

scorn. Locally, the vast majority of 

people in this country viewed the justice 

system with suspicion and distrust and 

many of them succumbed under its 

unbearably heavy hand. Today, our 

jurisprudence provides a standard for 

many developed and developing democracies. 

This is a source of great pride to 

me and I hope that it makes your 

collective hearts swell! 

Many of you might be aware that I 

have no legal background ± I am what 

many derisively refer to as a ``beancounter''. 

But in the few short months 

that I have been associated with Justice, 

I have become passionate about the law 

and the promise that it holds for all of us 

± a just, free and secure future ± a better 

life for all. I am convinced of it and I 

know that my 12-year-old son can look 

forward to a life in this country, free 

from bigotry and discrimination, confident 

that his dignity and the dignity of 

his family, community and country are 

guaranteed by the Constitution and the 

Bill of Rights. 

A passion for the law 

21

I said at the beginning of this address 

that one of the most important things 

law students can learn from their teachers 

is receptiveness to change. The 

second ± and it is a close second ± is a 

passion for the law. Our Constitution 

and the body of legislation that we have 

built into statutes since 1994 are worthy 

of great passion; they are also a source 

of enormous pride. 

And something so precious deserves 

to be protected with vigilance. As one 

legal scholar noted, the Rule of Law can 

be wiped out in one misguided, however 

well intentioned, generation. 

Justice and an effective legal system 

are central to the democratic process. 

And each day we are moving closer to 

our goal. If our dark and sordid part is to 

serve any purpose at all, it should teach 

us that 

. never again will there be one set of 

laws for the rich and another for the 

poor; and 

. never again will there be one set of 

laws for the whites and another for 

the black citizens of this country. 

As students, you should look forward 

to participating in a system that affords 

children, women, the old and the infirm 

equal status before the law. Indeed, the 

law should be sensitive to the vagaries 

of a past dominated by patriarchy and 

classism and it should protect jealously 

the rights of those most affected by the 

ghastly legacies that continue to compromise 

their dignity and integrity. 

Access to justice should not be determined 

by a lack of funds and the long 

wait in the Legal Aid queue. In short, 

justice should not be a luxury. 

Universities, law clinics, auxiliary 

paralegal services and you as students 

will play a central role in achieving the 

democratic, people-centred, rightsbased 

society to which we will all aspire. 

Your whole future lies before you. 

Young people are our most precious 

asset ± they are the embodiment of all 

our hopes and dreams. You are so lucky 

to be developing the skills that will 

equip you to tackle the future with the 

energy and verve that is so characteristic 

of your generation. 

Embrace transformation ± it is both a 

challenge and a liberation in the truest 

sense of the word. Until all of us are able 

to participate in and take advantage of 

this new democracy, we will continue to 

be defined by the past and shackled to a 

legacy too onerous to bear. 

Insist that the institution that you 

have elected to educate you and the 

profession that you have elected to 

shape your future, choose hope over 

despair, choose change over stagnation, 

choose relevance over obscurity. 

Transformation at tertiary institutions, 

transformation of the legal profession 

and transformation of the whole 

justice system are collectively opening 

up vast fields of opportunity ± I urge 

you, once again, to seize the moment. 

22

Civic republicanism and legal 

education 

Henk Botha, Associate Professor, Department 

of Constitutional and Public International 

Law, Unisa 

Mongwadi o hlalosa gore ge o sÏomisÏa 

molaotheo wa Afrika-Borwa, go ba molao o 

mongwe le o mongwe o swanetsÏe o se ke wa o 

sÏomisÏa o nnosÏi feela, eupsÏa o swanetsÏe o 

sÏomisÏe le molao wa setho (values) woo e le go 

gore ga o lwele ditokelo tsÏa batho, eupsÏa o 

tlisÏa moya wa go phedisÏana magareng ga 

batho. 

Umbhali wale ngxoxo uqhakambisa ukubaluleka 

kokufundiswa nosetshenziswa kwemithetho 

yezwe. Ngokwakhe uthi kuhle 

kufundiswe ukuthi imithetho mayiqikelela 

ukwandiswa kobuntu kakhulu kunesayensi 

yomthetho. Iso lomthetho liphumelela kangcono 

uma libanzi futhi lihlanganisa abantu 

bomphakathi bonke, kunokuba lithuthukise 

umfundi nomsebenzisi (ummeli) walo kuphela. 

Imithetho mayithuthukise igqugquzele 

igugu lobuntu kunezimiso zayo. 

1 Introduction 

Ask students to apply the two-stage 

approach to fundamental-rights problems, 

and you are likely to encounter 

a few common mistakes. First of all, 

some students seem to regard the general 

limitation clause in the Bill of 

Rights (section 36) as a broad authorisation 

to restrict constitutional rights. The 

limitation clause, in their view, loads 

the dice heavily in favour of the state or 

party seeking to demonstrate the validity 

of a fundamental-rights infringement. 

This interpretation of section 36 


reminds one of the way notions such as 

``national security'' or the ``public interest'' 

were used to justify serious human 

rights violations during the 1980s. It 

effectively negates the impact of the Bill 

of Rights, as fundamental rights are 

once again subordinated to broad considerations 

of the public interest. 

A second, more common mistake is 

to equate constitutional guarantees with 

existing legislation or common-law 

principles. The meaning of ``freedom'' 

is reduced to the protection afforded by 

the relevant section of the Criminal 

Procedure Act, ``freedom of expression'' 

is interpreted in light of the common 

law of defamation, etc. Of course, this 

approach misses the point: the Constitution 

is the yardstick against which 

legislation and the common law must 

be measured, not the other way around! 

Thirdly, some students seem to regard 

rights as absolute entitlements, which 

cannot be trumped by public-interest 

considerations. These students typically 

go through the motions of applying 

section 36, but then simply conclude 

that the individual's rights outweigh the 

importance of the purpose of the limitation, 

without trying to explain what 

went into their calculus. This approach 

effectively reduces fundamental-rights 

analysis to a one-stage approach: once 

it has been established that a fundamental 

right has been infringed, it is the 

end of the inquiry. 

What is absent from all these answers, 

is an attempt to tackle difficult 

social questions, to weigh up conflicting 

23

constitutional values (eg equality and 

freedom) against each other, and to 

address constitutional issues within a 

particular social context[s]. I find this 

disconcerting. The fact that so many 

students seem to think that one can 

apply legalistic formulas to constitutional 

issues, is a token of my failure 

to instil in students a sense that the 

Constitution requires us to move beyond 

the formalism, 1 conceptualism 2 and 

authoritarianism 3 of the past, and start 

engaging in a democratic debate about 

the meaning of our constitutional norms 

and commitments. Clearly, I will have 

to find new ways of telling students that 

constitutional provisions cannot be applied 

to factual situations in a mechanistic 

fashion, that the Constitution 

undermines the certainties of the old, 

legal-positivistic mindset, that the 

meaning of core legal values and standards 

is always essentially contested, 

and that it is only through ongoing 

deliberation that we can arrive at more 

or less legitimate legal decisions. 

But why do so many students cling to 

outdated modes of legal analysis? I can 

think of a number of possible reasons. 

One can, of course, blame it on the 

students themselves and/or on the new, 

four-year LLB degree. And certainly, the 

fact that many of our students are only 

in their first or second year of study may 

contribute to the problem, as may the 

fact that many students are underprepared 

for the exam. (After all, it takes 

lots of time and effort to acquire the 

necessary skills to argue constitutional 

issues in a coherent and contextualised 

manner). Another factor may be the way 

in which the exam is set up: the present 

format of the exam and the way marks 

are allocated (not to mention time 

constraints) are not conducive to substantive 

constitutional argumentation. 

However, I believe that the problem 

runs deeper than that ± that the difficulties 

experienced by LLB students in 

trying to master the craft of constitutional 

argumentation, reflect something 

about our broader legal culture and the 

state of legal education. For the legalistic 

attitudes I have described are also 

prevalent among post-graduate students, 

academics, legal practitioners 

and judges. Advocates, judges and law 

professors have, on the whole, clung to 

the formalistic habits of old; and have 

been unable to develop an approach or 

style more suited to the demands of 

constitutional adjudication. They (we!) 


1 By ``formalism'' I mean the belief in the availability of a distinctly ``legal'' method that enables judges to 

derive determinate answers to legal problems from existing legal materials. Formalists believe that legal 

reasoning is fundamentally different from moral and political discourse. Legal reasoning is objective, 

neutral and determinate. By contrast, moral and political discourse is open-ended and indeterminate. See 

Unger ``The critical legal studies movement'' (1983) 96 Harvard LR 561 564±565. 

2 By ``conceptualism'' I mean the belief that legal rules can be derived from fundamental legal concepts, 

such as ``property'', ``contract'', ``fault'', etc. Abstract legal concepts, in the view of the conceptualist, 

enable us to order legal materials into a structured and coherent system, from which the answers to legal 

problems can be logically deduced. The classical statement of this thesis is to be found in the nineteenthcentury 

writings of the German Pandectists, as well as the work of the American ``Langdellians''. 

3 By `àuthoritarianism'' I mean the assumption that power is its own justification, or that certain forms of 

power are not subject to the demand for dialogic vindication. Authoritarianism takes many forms: the 

divine right of kings, the notion that Parliament is sovereign and therefore need not justify its actions, the 

idea of individual rights as absolutes or trumps, and the belief of the formalist and the conceptualist that 

legal decisions are properly judged against legal ± as opposed to moral, political and social ± criteria. See 

West ``Disciplines, subjectivity, and law'' in Sarat and Kearns The fate of law (1991) 119 123 in connection 

with what she terms ``legal authoritarianism''. 

24

have failed to give content to the 

requirements of section 36, 4 to develop 

a post-formal, justificatory approach to 

constitutional adjudication, 5 and to significantly 

broaden the context within 

which constitutional issues are considered. 

6 

In this article, I argue that the liberal 

legal tradition is partly to blame for the 

current state of legal thought and legal 

education in our country, and that we 

must turn to a civic-republican conception 

of law and democracy to rectify 

some of liberalism's most glaring defects. 

2 What's the matter with 

liberalism? 

Some readers may find it surprising that 

I blame liberalism for our inability to 

develop a jurisprudence that would do 

justice to the ideals and commitments 

enshrined in the Constitution. The problem, 

they may argue, is precisely that it 

is difficult for lawyers to unlearn the 

habits of an illiberal legal past. It is 

preposterous, in this view, to blame 

liberalism for a return to the positivism 

and authoritarianism of the apartheid 

past. Liberalism, with its emphasis on 

freedom, equality and the justification 

of state conduct, is the cure for, rather 

than the cause of, our current predicament. 

It is not my intention to engage here 

in ``liberalism-bashing'', or to deny that 

liberal political theory can make a 

meaningful contribution to the establishment 

of a post-formal constitutional 

jurisprudence. I have no doubt that our 

Constitution owes much to the liberal 

tradition, and that it is a good thing, too. 

However, I believe that a liberal reading 

is not the only plausible interpretation of 

the Constitution, nor is it in all respects 

the best one. In fact, a liberal reading 

may sometimes obstruct the transformative 

aspirations enshrined in the Constitution. 

7 This is because liberalism 

takes certain things for granted and, as 

a result, insulates vital matters from 

democratic debate. I shall argue that the 

liberal conception of the individual, of 

society, and of the democratic process 

stands in the way of a truly democratic 

debate, in which our understanding of 

our individual and collective identities 

is subject to constant revision and rearticulation. 

But first, I would like to mention three 

characteristics of liberal theory. In the 

first place, the distinction between the 

public and private spheres is central to 

liberalism. In the mind of the liberal, the 

social world is divided into public and 

private matters. Public matters are matters 

of common concern ± things that are 

fit for public discussion and collective 

decision-making. Private matters, by 

contrast, are of no concern to the 

collective, and should be left to individuals 

to decide. Secondly, liberals believe 

that freedom is to be found 

primarily in the private sphere, and 

can be adequately protected only 

through negative rights, by which the 

individual's personal space is shielded 

from undue political interference. The 

individual is presented as someone who 

is driven primarily by considerations of 

self-interest, and is entitled to pursue 

her own life plan within the limits of her 

rights. Thirdly, liberals value democracy 

as a means to ensure that the government 

rules in the interests of society. It 


4 See eg Woolman ``Coetzee: the limitations of Justice Sachs's concurrence'' (1996) 12 SAJHR 99. 

5 See eg Cockerell ``Rainbow jurisprudence'' (1996) 12 SAJHR 1. 

6 See eg De Ville `Èduard Fagan in context'' (1997) 12 SAPR/PL 493; Van der Walt and Botha ``Coming to 

grips with the new constitutional order: critical comments on Harksen v Lane NO'' (1998) 13 SAPR/PL 17. 

7 See Klare ``Legal culture and transformative constitutionalism'' (1998) 14 SAJHR 146 for the argument that 

the Constitution aims to establish ``transformative constitutionalism''. 

25

is the task of the democratic process to 

mediate between the public and private 

spheres, and to see to it that public 

officials respect the rights of individuals. 

(Of course, liberals acknowledge 

that individual rights will not always be 

adequately protected by the democratic 

process, and may sometimes be endangered 

by it. Decisions of legislative 

majorities may therefore be trumped by 

constitutional safeguards of individual 

rights.) 

How, then, does liberalism stifle 

democratic debate? In the first place, 

the public/private distinction masks 

domination in the private sphere. It 

thus precludes the public consideration 

of certain issues, which are regarded as 

merely ``private''. For instance, domestic 

violence and the gender-based division 

of labour are considered ``private 

matters'' which do not merit public 

attention. 

Secondly, the liberal conception of 

rights as pre-political entitlements or 

wall-like boundaries between the individual 

and collective, stifles democratic 

debate about the relationship between 

the individual and community. 8 Once it 

is established that someone's right has 

been infringed, it is the end of the 

discussion. This approach negates the 

fact that our understanding of rights is 

itself shaped by political deliberation. It 

also ignores the reality that, in the 

modern state, no brightline boundary 

exists between public matters and private 

rights. The line dividing ``public'' 

and ``private'' matters, or ``collective'' 

and `ìndividual'' interests, has to be redrawn 

in every case. 

Thirdly, the liberal language of rights 

makes it difficult for members of certain 

groups, who do not conform to the 

liberal image of the autonomous individual, 

to voice their concerns and protect 

their interests. It has, for instance, been 

argued that the liberal conception of 

rights, by emphasising our separateness 

at the expense of our commonality, 

affirms the worldview and experience 

of the white, middle-class male, while 

negating the experience of women, 

children and other groups whose identities 

are forged more closely by the 

bonds of solidarity. 9 

Liberalism v Civic Republicanism 

Finally, the liberal conception of 

democracy as a means to prevent government 

from interfering with private 

rights, reduces politics to a bargaining 

process between competing interests. It 

assumes that the public interest is 

simply the sum of private interests, 

and negates the possibility that our 

perceived interests may themselves be 

transformed through political participation. 

10 


8 See eg Nedelsky Private property and the limits of American constitutionalism (1990); and ``Reconceiving 

rights as relationship'' (1993) 1 Rev of Constitutional Studies 1 for a critique of the liberal conception of 

rights. 

9 See Young `Ìmpartiality and the civic public'' in Benhabib and Cornell eds Feminism as critique (1987) 56. 

10 See eg Pateman Participation and democratic theory (1970); Macpherson The life and times of liberal democracy 

(1977); and Held Models of democracy (1987) for a critique of the liberal conception of democracy. 

26

3 Civic republicanism: an 

alternative normative vision 

The past few decades have seen a revival 

of interest in civic republicanism. The 

civic-republican tradition dates back to 

ancient Greece and Rome, and was 

revived in the political writings of the 

Florentine Renaissance. It was reformulated 

in England in the seventeenth 

century, from where it travelled to North 

America, where it played an important 

role in the justification of the American 

Revolution. 11 Today, civic republicanism 

provides legal and political theorists 

with an alternative normative vision, 

with which they can criticise the liberal 

paradigm dominating their respective 

disciplines, and develop an alternative 

normative framework. 

Civic republicanism embodies an alternative 

understanding of key political 

concepts, such as freedom, democracy 

and political authority. 12 In the first 

place, civic republicanism differs from 

liberalism in its conception of human 

freedom, and its image of the individual. 

In contrast to the liberal conception of 

freedom as something negative (``the 

absence of coercive social restraint 

against doing, or being, or becoming as 

one will''), 13 civic republicans emphasise 

the positive aspects of liberty. 

Liberty in this view consists in selfgovernment 

or, as Kant put it, in acting 

according to a law that one gives to 

oneself. What is important is participation 

in the civic life of the republic. Civic 

republicans are less interested in the 

protection of private interests than in the 

promotion of the common good; they 

are less concerned with external constraints 

on political outcomes, than with 

ways to ensure that political decisions 

issue from a truly deliberative process. 

The individual is seen as a political 

being, whose self-fulfilment hinges on 

her capacity to exercise political autonomy. 

Secondly, the liberal and republican 

traditions embody different understandings 

of the nature and role of the 

democratic process. According to the liberal 

view, it is the task of the democratic 

process to mediate between the government 

and the private sphere; to ensure 

that the government rules in the interest 

of society. On the republican view, 

however, democracy is not merely instrumental 

to the protection of private 

freedom, but has constitutive value. 

Participation in the political process is 

regarded as an important source of 

social integration, because it involves 

citizens in the articulation and pursuit of 

the common good. It is through political 

deliberation that citizens become aware 

of their dependence on one another and 

learn to respect each other's viewpoints. 

More than that, deliberation about the 

common good enables citizens to engage 

on a path of moral self-discovery, 

as the focus of participants on what is in 

the public interest, will often give rise to 

a reconsideration of their private beliefs 

and attitudes. 

Finally, republicanism differs from 

liberalism in its conception of the nature 

of political authority. Civic republicans 

contest the liberal conception of the 

state as the product of an agreement 

between individuals, exchanging their 

right of self-government for the greater 


11 See Pocock The Machiavellian moment (1975) for an extensive discussion of the history of civic 

republicanism. 

12 My characterisation of the differences between the liberal and republican traditions draws upon the 

following sources: Habermas ``Human rights and popular sovereignty: the liberal and republican 

traditions'' (1994) 7 Ratio Juris 1; Michelman ``The Supreme Court 1985 term ± Foreword: traces of selfgovernment'' 

(1986) 100 Harvard LR 4; and Pocock ``Virtues, rights, and manners: a model for historians 

of political thought'' (1981) 9 Political Theory 353. 

13 Michelman 1986 Harvard LR 25. 

27

security offered by a political society. 

James Harrington, a contemporary of 

Hobbes and a great exponent of republican 

government, rejected the idea of a 

transfer of the citizens' right of selfgovernment 

to a sovereign state. For 

Harrington, self-government could only 

be exercised by the self, and could not be 

displaced onto the state or any other 

distant force. 

4 Republican deliberation in the 

modern state? 

I believe that the republican tradition 

offers us a much richer (and normatively 

more attractive) conception of 

democracy than the liberal one. However, 

liberals argue that it is wholly 

unrealistic to expect citizens to engage 

in republican self-government in the 

modern state. The sheer size of modern 

polities, the existence of various interest 

groups, cultural diversity, and the proliferation 

of bureaucratic modes of organisation 

make a republican debate about 

the common interest an unlikely prospect. 

Moreover, liberals argue, the 

assumption that a broad consensus 

about what constitutes the ``common 

good'' or the ``public interest'' may 

emerge from the political process, is a 

dangerous one, as it may easily result in 

the dismissal of all dissent as irrational. 

14 

It is, of course, true that we are not 

living in a Greek polis or in Rousseau's 

Geneva, and that the size and complexity 

of modern polities generally preclude 

the type of democracy in which citizens 

assemble in the town hall to decide vital 

political issues. 15 However, it would be 

a mistake to conclude from this that 

republican politics is an impossible 

dream under modern conditions. Contemporary 

republican thinkers have 

shown that various forums and institutions 

can become the site of political 

participation and deliberation about the 

common good. Legislatures, 16 courts, 17 

administrative agencies, 18 and extragovernmental 

social institutions, such 

as civic associations and workplace 

forums, 19 all provide opportunities for 

political participation and deliberation 

about the common good. 

The South African Constitution acknowledges 

this, and seeks to promote 

public participation in political and 

legal decision-making. In the first 

place, the Constitution places a high 

premium on deliberation and public 

participation in the legislative process, 

and provides inter alia that the rules 

and orders of the National Assembly, 

the National Council of Provinces and 

provincial legislatures must have due 


14 Cf Joseph Schumpeter's critique of the ``classical doctrine of democracy'' in Capitalism, socialism and 

democracy 5ed (1976). 

15 Today, even radical democrats acknowledge that direct democracy is not a viable option in the modern 

state, and that representative institutions are indispensable to modern democracies. See eg Macpherson 

Liberal democracy 94±98; and Poulantzas State, power, socialism (1980) 253. 

16 Cf Sunstein `Ìnterest groups in American public law'' (1985) 38 Stanford LR 29 41 (the framers of the US 

Constitution envisaged the people's representatives in Congress as participants in a public debate ``from 

which the common good would emerge''). 

17 Cf Michelman 1986 Harvard LR 74 (the US Supreme Court as locus of republican deliberation over the 

common good). 

18 Cf Poisner `À civic republican perspective on the National Environmental Policy Act's process for citizen 

participation'' (1996) 26 Environmental Law 53. 

19 Paul Brest writes that political discourse ``may take place in connection with paradigmatic political 

activities such as lobbying or voting; or as part of `direct action' such as a labor strike or a civil-rights sitin; 

or it may consist simply of talk among citizens''. Brest ``Further beyond the republican revival: 

toward radical republicanism'' (1988) 97 Yale LJ 1623 1625. See also Michelman ``Law's republic'' 

(1988) 97 Yale LJ 1493 1528±1532. 

28

egard to ``representative and participatory 

democracy, accountability, 

transparency and public involvement''; 

20 and that these institutions 

must facilitate public involvement in 

their processes, and hold their sittings 

in public. 21 Secondly, the Constitution 

states that the public must be encouraged 

to participate in policy-making, 

and that the public administration 

must be accountable, and must provide 

the public with timely, accessible and 

accurate information. 22 Thirdly, the 

Constitution considerably relaxes the 

traditional rules relating to locus standi 

in fundamental rights disputes, and 

thus broadens the range of potential 

participants in constitutional litigation. 

23 Finally, the constitutional guarantees 

of freedom of religion, freedom 

of expression, freedom of assembly, 

freedom of association, political rights, 

labour rights, the rights of cultural, 

religious and linguistic communities, 

access to information and just administrative 

action all facilitate public 

participation in political discourse. 24 

But what about the liberal claim that 

the republican emphasis on the ``common 

good'' negates the plurality of 

values characterising modern societies, 

and thus ignores the differences between 

people in the name of an imagined 

political unity? I believe that this 

is a real danger, but that the republican 

ideal contains sufficient safeguards 

against it. In the first place, civic 

republicans emphasise that public values 

(or the common good) do not stem 

from a pre-existing consensus that one 

need only discover. Nor can one find 

public values through some form of 

abstract moral reasoning. Rather, public 

values are ``forged'' through the act of 

public participation, created through 

common deliberation and common action 

and the effect that deliberation and 

action have on interests, which change 

shape and direction when subjected to 

these participatory processes. Or, put 

another way, civic republicans believe 

that citizens create the common good 

through discourse. 25 

This emphasis on the creation of 

public values through public action 

distinguishes civic republicanism from 

political theories which simply assume 

the existence of a broad social consensus. 

In fact, civic republicanism celebrates 

human difference: it is only 

through innovation that we can articulate 

a common world, and innovation 

presupposes different ways of looking at 

the world. 26 Moreover, political deliberation 

requires a willingness to subject 

one's own assumptions to critical scrutiny, 

and to see the world through the 

eyes of another. 

5 Rights, adjudication, and politics 

Civic republicanism not only suggests 

ways in which we can deepen democracy, 

but also provides us with an 

opportunity to reconceive rights in a 


20 Ss 57(1)(b), 70(1)(b) and 116(1)(b). 

21 Ss 59, 72 and 118. See also s 160(7) in connection with municipal councils. 

22 S 195(1)(e)±(g). 

23 S 38. 

24 Ss 15±19, 23, and 31±33. 

25 Poisner 1996 Environmental Law 59±60. 

26 For Hannah Arendt, the creation of a common world presupposes a multiplicity of perspectives: ``[b]eing 

seen and being heard by others derive their significance from the fact that everybody sees and hears from 

a different perspective''. Arendt The human condition (1958) 57. 

29

less rigid manner. 27 Rights, in this view, 

are not pre-political entitlements or 

trumps over collective considerations. 

They are, rather, a political vocabulary 

that enables us to deliberate about the 

social relations we should like to structure, 

and to explore what keeps us apart 

and what binds us together. This conception 

of rights does not entrench the 

liberal myth of an independent and selfsufficient 

individual who is in control of 

his environment and relationships within 

a strictly defined private sphere. 

Instead, it recognises that individual 

and collective identities are interconnected, 

that domination occurs in both 

the public and private spheres, and that 

it requires political commitment (from 

citizens, legislators and judges) to uphold 

individual freedom. 

Liberal theorists argue that the civicrepublican 

understanding of rights may 

easily result in a tyranny of the majority. 

If we view rights as dependent on 

political decisions, and subject to an 

ongoing process of reinterpretation, we 

are in danger of surrendering our belief 

in the autonomy of the human person to 

the pulls and pressures of the ordinary 

political process. Moreover, the idea 

that rights talk is a form of political 

discourse, and that the interpretation 

and application of bills of rights involve 

political choices, undermines the rule of 

law: law is reduced to politics, and 

judge-made law can no longer claim to 

be neutral, objective and determinate. 

I believe that these fears are largely 

unfounded. To recognise that individual 

autonomy presupposes human interdependence 

and political commitment is 

far from saying that whatever the 

collective decides, is in the best interest 

of the individual. It is perfectly consistent 

to recognise, as does Nedelsky, that 

``the collective is a source of autonomy 

as well as a threat to it''; and that even 

though the democratic process is a 

prerequisite for the effective protection 

of human freedom, ``democracy is not 

itself sufficient to ensure autonomy''. 28 

Secondly, there is no reason why our 

commitment to uphold individual rights 

in the face of legislative and executive 

incursions should flag in the absence of 

clearly defined boundaries between the 

individual and collective. We can recognise 

that rights are socially constructed 

and represent a partial and contingent 

vision of social life, and yet go to 

considerable lengths to protect them. 

And thirdly, the recognition that judges 

participate in the articulation of public 

values, is not the same as saying that 

judges merely give effect to their own, 

subjective preferences. Once we realise 

that values are forged through public 

discourse, the dichotomy between objective 

facts and subjective values falls 

away. Judges, we are bound to discover, 

do not have an unfettered discretion, but 

are constrained by virtue of their membership 

of a dialogic community. 

I believe that there is a strong case to 

be made for a civic-republican interpretation 

of the Bill of Rights in the South 

African Constitution. The fact that at 

least some of the rights in the Bill of 

Rights bind ``private actors'', 29 is an 

indication that the Constitution seeks to 

subject public and private power to 

critical public debate. Moreover, the 

general limitation clause in the Bill of 

Rights (s 36) recognises that rights are 

not absolute, that their meaning shifts 

over time, and that the validity of a 


27 It is true that ``rights'' were traditionally not part of the civic-republican vocabulary, and that we 

inherited the language of individual rights from the liberal tradition. However, contemporary civic 

republicans generally value the idea of rights; they just argue that rights should be given a less 

subjectivist and essentialist interpretation. 

28 Nedelsky Private property 273, 274. 

29 See ss 8(2), 9(4) and 32(1)(b). 

30

limitation can be determined not with 

reference to some bright-line boundary, 

but only with regard to the values 

underlying a free and democratic society, 

as well as the broader social 

context within which the dispute arose. 

It is therefore my contention that the 

Constitution institutionalises a debate 

about the relationships we should like to 

structure, rather than merely insulating 

certain matters from democratic debate. 

It invites citizens (and non-citizens), 

legislators, judges and administrative 

officials to participate in a debate about 

the relationship between the individual 

and community, and to help articulate 

the kind of society we are and the kind 

of society we should like to become. 

6 Concluding remarks 

In this article, I criticised liberalism for 

its subjectivist notion of rights, instrumentalist 

concept of democracy, and 

close ties to legal formalism. I argued 

that liberalism is partly to blame for our 

inability to develop a post-formal constitutional 

jurisprudence, and our unwillingness 

to address substantive value 

questions. I contrasted the republican 

conception of rights and democracy to 

the liberal one, and found that the civicrepublican 

tradition provides us with a 

vocabulary through which we can articulate 

public values, and encourage 

public participation in political and legal 

decision-making. 

But how are we to incorporate civicrepublican 

insights into our legal teaching? 

I can offer only a few tentative 

suggestions. In the first place, we must 

resist the temptation to provide students 

with `èasy'' answers to complex issues, 

or to teach them legal ``formulas'' from 

which they can deduce the correct 

solutions to legal problems. Instead, 

we should alert them to the fact that 

there are many different ways of looking 

at the world, and that the way in which 

we approach legal questions, will invariably 

be influenced by our moral, 

political and social beliefs. 

Secondly, we must question the liberal 

assumption that values are no more 

than subjective preferences, and that it 

should be left to the ``political market'' 

to mediate between conflicting values. 

Instead, we have to stress that values are 

shaped by public discourse, and that 

they can and should become the subject 

of rational and critical deliberation. 

Thirdly, we must constantly remind 

students that it is only through the 

contestation of ideas that the validity 

of propositions can be tested. This 

applies not only to statements about 

the facts of a case, or to assertions that a 

particular legal rule or standard is or is 

not applicable, but also to assumptions 

that are so deeply ingrained in legal 

practice that we are most of the time not 

even aware that we are influenced by 

them. Assumptions about the judicial 

function, the proper reach of the law, 

the division between the public and 

private spheres, and what constitutes 

rational or irrational behaviour, need to 

be subjected to critical scrutiny. If only 

we stop privileging the discourse of 

lawyers and start listening to other 

participants in the public debate, we 

may become aware of the fact that these 

assumptions are already contested by 

people whose lives are directly affected 

by the bias inherent in lawyerly assumptions. 

Finally, we should practise what we 

preach: our own decision-making procedures 

should aim to optimise deliberation 

about the common good. For too 

long, the deliberations of the faculty 

have been dominated by the assertion of 

departmental interests, and attempts to 

reach compromises among these interests. 

We will have to find ways of 

breaking the stranglehold of the departmental 

system on faculty decision-making, 

and start redefining what it is that 

keeps us apart and that binds us 

together. 

31

Universities as heterogeneous 

public spaces 

Karin van Marle, Lecturer, University of 

Pretoria 

Mongwadi o maikutlo a gagwe ka fao 

makala(fakhalithi) tsÏa molao a swanetsÏego 

gore a fetolwe ka gona gore e be mafelophatlalatsÏa 

go leka go kgothaletsÏa barutwana 

gore ba gole moyeng wa go dirisÏana le 

boteeng. Mongwadi o bolela gape gore molao 

ga o a swanela gore o balwe bjalo ka 

saentshe eupsÏa ka ditsela tsÏe di fapaneng. 

Le ngxoxo yethula inkulumo-mpikiswano 

edingida iphuzu lokuthi umnyango wezemithetho 

emanyuvesi kumele ungagxili njena 

ekufundisweni kwezesayensi yomthetho 

ezokwenza abafundi izicebi zakusasa (abameli) 

kuphela. Le ngxenye yenyuvesi, njengendawo 

yomphakathi, kumele izame 

ukugqugquzela igugu lokwaziwa kwemithetho 

nokusetshenziswa kwayo umphakathi. 

Kafushane njena umfundi wezomthetho 

uyisisebenzi somphakathi ngakhoke 

kumele andise ubuntu lapho esebenza 

ngezemithetho. 

Why public space? 

In the next few pages I shall argue for 

universities, and law faculties in particular, 

as heterogeneous public spaces. I 

believe that universities should be reconstructed 

and transformed as public 

spaces. We constantly and continuously 

need to reconstruct and transform as 

part of an attempt to prevent universities 

from becoming mere formal learning 

institutions from which nearly all forms 

of public dialogue, deliberation and 

reflection are absent. 

* 

Before I continue, a short comment on 

my own experience of university, as a 

student and as a lecturer. I went to 

university after school with ``great expectations'' 

of young people gathering, 

deliberating and philosophising in an 

attempt to solve the many problems 

facing our country and the universe in 

general. Was I disillusioned! I made the 

first mistake by entering hostel life, 

from which I made a hasty exit five 

days later. My general impression after 

five days of hostel life was that we (a 

group of more or less 100 women) were 

at university to please the occupants of 


the male hostels, not to gain weight, and 

ultimately, to find a husband. 1 After my 

departure I found a small group of 

students involved in politics, but it was 

at the student newspaper that I found a 

space for discussion, deliberation and 

reflection during my five years of university 

life. My general impression of 

this period is that people negated difference 

and all seemed to strive towards 

sameness. When I entered the other side 

of academic life, nothing really changed, 

except that it was possible to link 

this behaviour to certain philosophical 

strains. Working in law faculties made 

concepts like legal formalism, positivism, 

the law as a science, the distinction 

between facts and values, morality 

and the law, what is and what ought to 

be, practical. The tension between various 

strands of thinking I can accept, but 

the absence of free nonformalist, noninstrumental 

deliberation and reflection 

in a public space worries me. I understand 

now why as a student I received 

the minimum encouragement to participate 

in (student) public life. 2 Most 

academics, and accordingly the academic 

environment, are devoid of public 

spiritedness. Too many legal academics 

cling to their belief in scientific foundations 

and classifications and reject all 

voices other than and different from this 

comfortableness. 

* 

In South Africa, where most issues on 

political, economic, social and cultural 

level are still being (re)arranged, we 

need to have concepts, visions and 

appearances of public space. I start by 

referring briefly to Hannah Arendt's 

vision of the public realm because it 

serves as an inspiration for my commitment 

to public space. 

The Arendtian vision of public 

space 

Hannah Arendt 3 distinguishes between 

three realms of the human condition, 

namely labour, work and action. She 

associates the first two activities with 

the private realm. The third activity, 

action, falls into the public realm. 

Labour and work (the private realm) 

are ruled by the necessities and materiality 

of the life process. In the realm of 

labour and work, each and everyone, 

human and animal, is exactly the same 

as someone else. It is through action, in 

the public realm, that humans can display 

their plurality, spontaneity and 

unpredictability. 

Arendt models her vision of the 

public realm on the Athenian city-state. 

The players in her private and public 

realm are the slave, merchant and 

citizen. The slave is tied up in the 

necessity of labour and the merchant in 

Arendt's Athenian and city-state: slave, merchant 

and citizen 


1 Of course this was my personal experience. I am not denying the possibility that some people might find 

hostel life as a form of community life acceptable and that public issues are discussed. 

2 Like most things there were the exceptions. I apologise for violating the few academics who did try to give 

us more than mere formal learning. 

3 (1958) The human condition. 

33

the materiality of tangible things. The 

citizen is the one who enters the public 

realm and engages in action and speech. 

Arendt describes the decline of public 

space in modern times as a loss of 

humanity. With the ``rise of the social'', 

economic and material concerns were 

regarded as the most important aspects 

of life, to the detriment of action and 

speech and the public realm. Arendt 

describes the effect of the loss of public 

space most powerfully in her account of 

totalitarianism. 4 For Arendt the rise of 

Nazism and Stalinism was the result of 

the decline and the loss of public space, 

and with it action and speech. Human 

plurality is displayed in action and 

speech, while labour and work are ruled 

by a ``herd-like'' mentality. Totalitarian 

regimes were possible because of the 

absence of the public. 

In our country, South Africans experienced 

an authoritarian (and even 

totalitarian) regime officially for more or 

less 40 years, unofficially for many 

more. One of the many travesties of 

South African society during these years 

was the absence of public space and 

political action. Of course South African 

life was, as in most other cases, also 

deeply divided with regard to action. 

While most white South Africans lived 

secluded lives behind big white walls or 

black iron fences, many black South 

Africans participated in struggle politics. 

One cannot make a general statement 

about the absence of public space 

in South Africa over the past 45 years. 

My concern is whether anything has 

changed since the birth of our democracy. 

Are South Africans now more 

aware of their roles as citizens, of the 

value of public and political participation 

and action? Of course there have 

been examples of such action. The 

operation of the Truth and Reconciliation 

Commission is an obvious moment where 

South Africans engaged in public and 

political action and where human plurality 

was displayed. The centenary of 

the South African War was another 

example where South Africans from all 

sides of the spectrum participated in a 

public event. 

The only way we can seek to reconstruct 

and transform public spaces and 

encourage action is in a context in 

which multiplicity, heterogeneity and 

difference are accepted and even celebrated. 

This is especially true of the 

notion of universities as public spaces. 

The university as heterogeneous 

public space 

In an article entitled `Ìmpartiality and 

the civic public'', Iris Young 5 puts 

forward the view that contemporary 

politics should break with modern traditions 

of moral and political life. I would 

like to place this critique in the context 

of public life at our universities. She 

argues that emancipatory politics must 

develop a conception of normative 

reason that does not separate ``reason'' 

from ``desire'' and `àffectivity''. Young 

criticises the deontological tradition's 

assumption that normative reason is 

`ìmpartial'' and `ùniversal''. She says 

that the `ìdeal of impartiality'' expresses 

what Adorno calls ``the logic of 

identity'' or Derrida calls ``the metaphysics 

of presence''. This ideal of impartiality 

denies and represses difference and 

expresses an ideal of unity, which 

generates an oppressive opposition between 

reason and desire. Young argues 

that the theoretical and practical exclusion 

of women from the public sphere is 

a manifestation of the civic public's will 

to achieve unity, which leads to the 

exclusion of those aspects of human 


4 (1951) The origins of totalitarianism. 

5 `Ìmpartiality and the civic public'' Benhabib & Cornell (eds) (1987) Feminism as critique 57±76. 

34

existence ``that threaten to disperse the 

brotherly unity of straight and upright 

forms''. 6 An emancipatory conception 

of public life, in her view, must ensure 

the inclusion of all persons and groups, 

not by claiming a unified universality 

but by explicitly promoting heterogeneity 

in public life. 

Young argues that the ideal of impartiality 

removes people from their 

`àctual'' contexts of living and moral 

decision making, to a situation where 

they cannot exist. She refers to Michael 

Sandel's argument that ``the ideal of 

impartiality requires constructing the 

ideal of a self that is abstracted from 

the context of any real persons: the 

deontological self is not committed to 

any particular ends, has no particular 

history, is a member of no communities, 

has no body''. 7 This is true of how most 

of my colleagues perceive not only 

themselves, but how they approach their 

colleagues, and especially their students. 

The ``logic of identity'' seeks to unify 

concrete particulars by relying on an 

`èssence'' which eliminates otherness 

and reduces the specificity of situations 

and the difference between moral subjects. 

In modern moral discourse, being 

impartial means especially being 

dispassionate: being entirely unaffected 

by one's judgement. The idea 

of impartiality thus seeks to eliminate 

alterity in a different sense, in 

the sense of the sensuous, desiring 

and emotional experiences that tie 

me to the concreteness of things, 

which I apprehend in their particular 

relation to me. Why does the idea of 

impartiality require the separation of 

moral reason from desire, affectivity 

and a bodily sensuous relation with 

things, people and situations? Because 

only by expelling desire, affectivity 

and the body from reason can 

impartiality achieve its unity. 8 

The above quote is also a true reflection 

of the belief in law as a science. 

Young 9 argues that the ``logic of identity'' 

generates dichotomy instead of 

unity. She notes that the move to place 

particulars in a universal category creates 

a distinction between `ìnside'' and 

`òutside''. The dichotomy between reason 

and desire is reflected in modern 

political theory in the distinction between 

the `ùniversal public'' realm of 

the state and the ``particular private'' 

realms of needs and desires. Modern 

normative political theory aims to embody 

impartiality in the public realm. 

Young 10 notes that modern political 

philosophy emphasises a concept of the 

public realm that expresses impartiality 

and universality and excludes partiality 

and desire. The effect of this (modern 

political philosophy) was that women, 

because they are the ``caretakers of 

affectivity, desire and the body'', were 

excluded from the public realm. Modern 

normative reason with its political expression 

in the idea of the ``civic public'' 

has unity and coherence because it 

expels all differences (such as the 

specificity of women's bodies and desire, 

the difference of race and culture, 

etc). 


6 Young `Ìmpartiality and the civic public'' in Benhabib & Cornell (eds) (1987) Feminism as critique 59. 

7 Young (op cit supra n6)60. 

8 Young (op cit supra n6)62. 

9 Ibid. 

10 Young (op cit supra n 6) 64. 

35

Young 11 argues that while Habermas's 

idea of a communicative ethics 

provides the most promising starting 

point for an alternative conception of 

normative reason, it remains inadequate 

because he retains a commitment to 

impartiality and in his theory of communication 

separates reason and desire. 

Habermas retains a universalistic understanding 

of normative reason and therefore 

finds that norms must express 

shared interests. In doing so, he again 

expels and devalues difference. This 

argument explains why we need to 

challenge present approaches and points 

of view. Although universities are 

``transforming'' on a superficial level, 

transformation at another level is also 

necessary. We need to open ourselves to 

other thoughts and other ways of being. 

The fact that more black people and 

women are appointed will only lead to 

the transformation of ideas if present 

beliefs can be challenged in a public 

space where there is room for values 

other than impartiality and rationality. 

The distinction between public and 

private as it appears in modern political 

theory expresses a will to achieve 

homogeneity to the exclusion of many 

persons and groups. We need to transform 

the public/private distinction in 

such a way that it does not correlate 

with a distinction between reason and 

desire, or universal and particular. 

Young defines public as that which `ìs 

open and accessible''. 12 The feminist 

slogan, ``the personal is the political'', 

does not deny a distinction between 

public and private, but in fact a social 

division between public and private 

spheres. Instead of defining privacy as 

that which the public excludes, it should 

be defined as that aspect of an individual's 

life from which he or she has a 

right to exclude others. She notes that 

two principles that follow from the 

``personal is the political'', are, first, 

that no social institutions or practices 

should be excluded from being the 

``proper'' subject for public discussion 

and expression, and secondly, that no 

person, actions or aspects of a person's 

life should be forced into privacy. We 

should strive for a new kind of public 

where persons, aspects of their lives or 

topics of discussion are not excluded 

and where `àesthetic'' as well as ``discursive'' 

expression are encouraged. 

In such a public, consensus and 

sharing may not always be the goal, 

but the recognition and appreciation 

of differences, in the context of 

confrontation with power. 13 

In reconstructing and transforming 

universities as heterogeneous public 

spaces we need to take Arendt's vision 

of the public realm and Young's vision 

of heterogeneous public space into 

account. The strong divide between facts 

and value, between morality and the 

law, between what is and what ought to 

be, must be challenged. This can be 

done by action and by the display of 

human plurality and multiplicity. A 

huge part of this challenge must come 

from the voice of the other opposing the 

male modern rationality that has 

reigned in universities and suppressed 

all difference. 

I conclude with the comment of a 

French feminist academic, Luce Irigaray, 

on ``Women's discourses and men's 

discourses'': 14 

Man seem to have wanted, directly or 

indirectly, to give the universe his 


11 Young (op cit supra n 6) 67±73. 



14 Irigaray (1993) Je, tu, nous. Toward a culture of difference 31. 

36

own gender as he has wanted to give 

his own name to his children, his 

wife, his possessions. This has a 

significant bearing upon the sexes' 

relationships to the world, to things, 

to objects. In fact, anything believed 

to have value belongs to men and is 

marked by their gender. Apart from 

possessions in the strict sense that 

man attributes to himself, he gives 

his own gender to God, to the sun, 

and also, in the guise of the neuter, to 

the laws of the cosmos and of the 

social or individual order. He doesn't 

even question the genealogy of this 

attribution. ... How could discourse 

not be sexed when language is? It is 

sexed in some of its most fundamental 

rules, in the division of words 

into gender in a way not unrelated to 

sexual connotations or qualities ... 

Differences between men's and women's 

discourses are thus the effects 

of language and society, society and 

language. You can't change one 

without the other. Yet while it's 

impossible to radically separate one 

form the other, we can shift the 

emphasis of cultural transformation 

from one to the other, above all we 

must not wait passively for language 

to progress. Issues of discourse and 

of language can be deliberately used 

to attain greater cultural maturity, 

more social justice. It's the lack of 

consideration given to the importance 

of this dimension of culture 

that gives the technological empire 

so much power as a neutral force, 

that reinforces sectarian setbacks, 

present-day social and cultural disintegration, 

the various monocratic 

imperialisms, etc. 

37

Lawyers as flannelled fools: 

Part 1: Sir Murray Bisset * 

Heinrich Schulze, Professor, Department of 

Mercantile Law, University of South Africa 

Mongwadi o re anegela ka ga bophelo bja 

batho ba babedi ba. Batho ba babedi ba, ke 

boramelao e bile ka lehlakoreng le lengwe ke 

dibapadi tsÏa kherikhete (cricket). Ke dingwete 

goba batho bao re ba bitsÏago 

dikgwari go se sengwe le se sengwe seo ba 

se dirago. Bobedi bja bona ba tsenetsÏe 

diphadisÏano tsÏa kherikhete ba tswelela ka 

pele, ka lehlakoreng la tsÏa melao le gona ba 

tsweletsÏe ka pele ka go ba baahlodi dikgorong-kgolo 

tsÏa tsheko. 

Lapha kunikezwa kafushane nje umlando 

kaSir Murray Bisset. Lona wazakhela udumo, 

ngokuba umhloli weqembu lezomdlalo 

wekhilikithi (cricket). Kanti futhi wabe 

engumehluleli, ijaji phela, elikhulu laphaya 

ezweni laseZimbabwe (Rhodesia). Lapha 

kuchazwa indlela lo mlisa azimisela ukusebenza 

ngayo ukuphumelelisa le misebenzi. 

Murray Bisset was a most talented and 

able South African. He reached the 

highest office in the legal world and, 

had he not decided to quit politics, 

might easily have reached the highest 

office in politics too. He was South 

Africa's first international cricket player 

who would proceed to hold a position 

on the bench as judge. He was also the 

first advocate to captain South Africa 

and the first of two wicketkeepers who 

captained South Africa and later became 

judges. (The other was VH Neser.) 

Murray Bisset was born in Port Elizabeth 

on April 14, 1876, the fifth of six 


* This article is an extract from my book South Africa's Cricketing Lawyers (1999). It is reproduced here with 

the kind permission of the publishers: Interdoc Consultants (Pty) Ltd. The book consists of 32 biographical 

notes on the lives of the 32 South African international cricketers who also had careers in law. Among 

these 32 international cricketers were three magistrates, one Master of the Supreme Court, one law 

lecturer, seven advocates (three of whom would later became judges) and 20 attorneys. Six of these 32 

cricketing lawyers are still alive. 

The initial idea with the research contained in my book was not to put anything into writing, but merely 

to compile a mental list of South Africa's cricketing lawyers. Later I realised that my initial list which at 

that time had only six or seven names on it, had become disproportionately long and that it merited 

something in writing. I then considered publishing a short article on South Africa's cricketing lawyers in 

Codicillus. Still later I realised that an article would not do justice to the versatile careers of many of our 

cricketing lawyers had either, and I decided to write a book which contains a separate chapter on each of 

them. Thus, more than three years after the thought of an article on South Africa's cricketing lawyers first 

crossed my mind, it is being published in Codicillus after all. 

Two versions of the book on South Africa's Cricketing Lawyers have been published: a standard edition, and 

only 100 deluxe editions. The deluxe version of the book is quarter-leather bound with metal corners, 

individually numbered and contains the original autographs of the six living cricketing lawyers, plus 

facsimiles of the autographs of all cricketing lawyers. The standard version of the book contains facsimile 

reproductions of the autographs of all 32 cricketing lawyers. South Africa's Cricketing Lawyers can be ordered 

directly from the publishers, Interdoc Consultants (Pty) Ltd (011) 805±6406. It is also available at leading 

book stores. 


sons of James Bisset, a civil engineer, 

and his wife Elizabeth Magdalena Christine 

Jarvis, who was the daughter of 

Hercules Crosse Jarvis, MLC, MLA. Like 

two of his five brothers, he was educated 

at the Diocesan College, Rondebosch, 

where he graduated in Literature in 

1895. In those days Diocesan College 

(``Bishops'') was not merely a school 

but also prepared candidates for degrees. 

He obtained the BA and LLB degrees at 

Bishops. Some time after Bisset had left 

Bishops, one of his ex-professors was 

heard to address a lazy student as 

follows: 

You remind me of old Murray Bisset. 

He never did a stroke more work than 

was necessary to get him through 

exams. But he got through ± you 

probably won't. 

Be that as it may, in 1894, while 

studying at Bishops, Bisset received the 

Ogilve Prize for Latin Prose. Little is 

known of Murray Bisset's professional 

life for the period 1896 to 1919. He was 

articled to a Cape Town legal firm in 

1896 and three years later he passed his 

final LLB examinations and was admitted 

as an advocate of the Supreme 

Court. Soon afterwards he saw military 

service in the Anglo-Boer War (1899± 

1902) when he served for three months 

with the Western Province Mounted 

Rifles (Cricketers' Troop) as a sergeant 

and enlisted in the Claremont Troop of 

the Peninsula Horse on March 22, 1902. 

He was awarded the Queen's South 

Africa Medal with clasp. In 1905 he 

married Gladys Violet Difford. Two of 

her brothers, Archibald Newcombe 

(Western Province and Transvaal 1904/ 

05±1911/12), and Ivor Denis (Transvaal 

1893/94±1907/07) played first-class 

cricket. He volunteered for service in 

World War I and enlisted in the Duke of 

Edinburgh's Own Rifles. Shortly after 

starting his military service in South- 

West Africa, he was found to be 

medically unfit and returned to civilian 

life. During 1910 he served with Advocate 

FG Gardiner (later Judge President 

of the Cape Supreme Court) on a 

committee representing Diocesan College 

in amalgamation negotiations with 

SACS (South African College School). 

He then entered politics and was elected 

as member of Parliament for South 

Peninsula in October 1915 and reelected 

in 1920. During his political 

career he was regarded as a useful and 

valued member of the Assembly. As a 

member of the Unionist Party under the 

leadership of Sir Thomas William 

Smartt he was held in high esteem as a 

fearless and forceful debater. However, 

his sincerity, courtesy and avoidance of 

prejudice always assured the respect and 

regard of his political opponents, despite 

the strong imperialistic leanings of 

the Unionist Party. Never robust, Bisset 

was not suited for politics and in May 

1924 he quit the Union Party for health 

reasons. 

After his brief stay in politics he 

joined the Cape Bar where success came 

naturally. On July 6, 1919 he took silk. 

He was a prominent and popular member 

of the Cape Bar and was respected 

and loved by friend and foe. He quickly 

acquired an extensive leading practice. 

Bisset was an influential senior at the 

Bar where he was known as an eloquent 

and incisive speaker. He put these 

talents to good use as a subtle and 

persuasive cross-examiner. 

Apart from his oratory gifts he was 

also an eloquent writer and together 

with Percival Smith jointly authored 

Bisset and Smith's Digest of South African 

Case Law. He was also a regular contributor 

to Bishop's Magazine and in an 

39

editorial of December 1897 he was 

thanked for his invaluable assistance. 

The editor also stated that ``[i]f an article 

on cricket, or one of his satirical 

sketches is wanted, Murray's pen is 

always ready, and he serves them up 

in an inimitable way entirely his own''. 

Although he was offered an acting 

judgeship on the Cape Bench while in 

politics, he declined. After a six-month 

stint as Governor of Southern Rhodesia, 

he was offered the position of senior 

judge in 1925. In accepting this offer he 

succeeded Sir Clarkson Tredgold. He 

was appointed as acting senior judge of 

the High Court of Southern Rhodesia on 

January 1, 1926 and was appointed 

permanently as chief justice (or senior 

judge) of Southern Rhodesia on January 

1, 1927. During the first six months of 

his term as a judge he acted as Governor 

of Southern Rhodesia in Sir Cecil Rodwell's 

absence. Because there were so 

few judges on the Southern Rhodesian 

Bench the workload was heavy and 

Bisset ASJ (as he was then) handed 

down a large number of decisions in his 

first year. Many of these were reported 

in the 1926 Law Reports of Southern 

Rhodesia. The first were reported as Rv 

Chibadi and others 1926 SR 1; and Rv 

Mushaba 1926 SR 3. Both these decisions 

were reviews. His last reported 

judgment was handed down on June 26, 

1931 and is reported as Anning v The 

Colonial Secretary 1931 SR 95. 

Bisset was knighted in 1928 and 

became Sir Murray Bisset, KCMG 

(Knight Commander of the order of St 

Michael and St George). In 1930 the 

title of senior judge was changed to 

chief justice. 

Apart from his political and legal 

activities in the Cape, Bisset also served 

on various bodies in different capacities. 

A few of his activities in the Cape 

Chief Justice Murray Bisset of the Southern Rhodesia 

High Court, circa 1927, age 51. (Reproduced 

with kind permission of Juta & Co Ltd.) 

Peninsula included the following: chairman 

of the Navy League of South Africa; 

president and founder of the Plumstead 

Sports Club; chairman of the Western 

Province Sports Club; member of the 

Diocesan College Council; member of 

the Old Diocesan Football Club (1895); 

and president of the Western Province 

Cricket Union (1907 to 1908 and again 

from 1911 to 1913). 

Although Bisset represented his college 

in rugby as well as cricket, it was 

the latter that brought him fame. One of 

Murray Bisset's five brothers, William 

Molteno (Bill) represented South Africa 

as rugby forward in two tests during 

1891 (there was no specialisation in 

those days, although one source does 

indicate that Bill Bisset was perhaps the 

first South African loose forward to 

40

specialise in that position). Dr Danie 

Craven rated Bill Bisset as one of the best 

players ever to have worn the Springbok 

jersey. One source indicates Bill Bisset's 

profession as ``judge'', but I could not 

find any authority to substantiate this. 

The earliest reference to Murray Bisset's 

cricket career dates back to his 

Bishops days. From 1891 and 1895 he 

was an outstanding member of the 

College XI, and he captained the side 

during his last two seasons. One of his 

outstanding records was his feat as 

bowler when he took 14 wickets for 37 

runs in one match for Bishops against 

SACS in 1891. On six occasions he took 

six wickets in an innings in those hardfought 

encounters between Bishops and 

their arch rivals. (The rivalry between 

Bishops and SACS dates back to the 

middle of the 19 th Century and is nicely 

illustrated by the joke told by Mr Justice 

PST Jones at a ``Past and Present'' 

football supper, of the old lady who 

said that she had three sons, ``two 

living, and one at SACS''.) On November 

30, 1891, the first cricket match at 

the now famous ``Firs Field'' at Bishops 

was played between the Past and the 

Present teams. The Present team won 

and their captain, Murray Bisset took six 

for 27 in the Past team's first innings 

and eight for 19 in their second. 

He first represented a Western Province 

XVIII at the age of 15 when he 

played for them in short trousers and 

long black stockings against WW Read's 

English team in January 1891. He later 

captained Western Province for ten 

years. He was described as a ``fine 

forcing [right-hand] batsman'' and a 

``natural inspired leader of men, who 

demonstrated his requirements by inspired 

example''. Although he started as 

a school-boy-marvel left-arm bowler, he 

gradually became a splendid batsman, 

and ended up keeping wicket for and 

captaining South Africa. This change in 

discipline was brought about by an 

injury to his bowling arm. As a wicketkeeper 

he was known to stand up well to 

the fiery pace of Johannes Jacobus 

(Kodgee or Boerjong) Kotze (a fast 

bowler who represented Transvaal and 

Western Province and who played in six 

tests during 1901 to 1907) and execute 

stumpings on the leg-side with lightning 

speed. His batting and wicketkeeping 

talents were nicely supplemented by his 

slow, left-arm deliveries. Bisset almost 

single-handedly won the Currie Cup for 

Western Province during the sixth tournament 

that was held in Johannesburg 

in 1896/97. Transvaal, who hosted the 

tournament, stood out until the final 

game and Western Province had to play 

(and win) all the other competing teams 

(Eastern Province, Griqualand West and 

Natal) to reach the final. They then beat 

Transvaal by 72 runs, thanks mainly to 

Bisset's brilliant hitting all round the 

wicket in Western Province's first innings. 

He was eventually not out with 

124 runs behind his name. In the next 

tournament, which was held in 1897/98 

in Cape Town (and which was the last to 

be played before the Boer-War hostilities 

put an end to serious cricket till 1903), 

Bisset's bat again ensured that the Currie 

Cup would stand at Newlands till after 

the Boer War. In a low scoring final 

against the powerful Transvaal team, 

Bisset scored the only half-century of the 

match to take his side to a surprising 

eight-wicket victory. Western Province 

were chasing 122 for a win and Bisset 

took first strike for his team. He was 63 

not out when Western Province passed 

the target. (Incidentally, in the same 

match one of Bisset's teammates was 

PST Jones, later Jones J and still later, 

Jones JP.) Bisset's impact on the Currie 

41

Murray Bisset, aged 22, a youthful captain of one of the many Western Province and South African teams 

that he led with distinction. On this occasion he captained the Western Province XIII that played Lord 

Hawke's English team on December 24 to 27, 1898. 

Back row, from left: JH Anderson, R Graham, A Reid*, SE Horwood, J Pritchard, C Fock, PST Jones*, and 

J Middleton. Front row: AVC Bisset*, GA Rowe, M Bisset*, and HH Francis. This Western Province team 

was unique for a number of reasons. Not only did it contain five future criketing lawyers (indicated with an 

asterisk), but 11 members of this team had already played or would play international cricket for South 

Africa. (The only two non-capped players were Pritchard and Fock.) Two members of this team, Anderson 

and Jones, were double internationals and also played rugby for South Africa. (Private collection: Jimmy 

Kuys.) 

Cup scene during his career is evident 

from the fact that for the period 1889 to 

1913, he ranked 16 th on the list of best 

batting performance by scoring 522 runs 

in 21 innings while he was four times 

not out. He averaged more than 30 runs 

during his Currie Cup career. Bisset 

represented Western Province in 15 

Currie Cup games and six other firstclass 

games during the years 1894 to 

1910. Altogether he played in 40 firstclass 

games in which he scored 1436 

runs with a highest score of 184. He 

took 51 catches and completed 13 

stumpings. 

The Anglo-Boer War rudely interrupted 

Bisset's cricket career and as a 

result he played in only three tests for 

his country. Another factor that cut 

short his active participation in cricket 

was his heart condition. He made his 

international debut against Lord Hawke's 

English team which toured South 

Africa in 1898/99. (The captain of the 

touring team was Martin Bladen, who 

was the seventh Lord Hawke.) Bisset 

had the further distinction of captaining 

his country on debut, and set a record 

which still stands as the youngest South 

African captain being 22 years and 306 

42

days when he led South Africa against 

England in the first test which was 

played at the Old Wanderers, Johannesburg 

on February 14 to 16, 1898. 

Incidentally, the present captain of the 

South African team, Wessel Johannes 

(Hansie) Cronje, was 25 years and 125 

days when he captained South Africa for 

the first time. Cronje was the youngest 

South African test cricket captain in the 

20th Century. Although England won by 

32 runs, it was a close affair and Bisset 

made good contributions with the bat by 

scoring 35 and 21 not out. In addition 

he took one catch behind the wicket and 

also stumped one batsman. The second 

test was played at Cape Town on April 

1, 3 and 4, 1899. This time England 

won by 210 runs. Although Bisset was 

promoted from fifth to third in the 

batting order, he did worse than in 

Johannesburg and scored 15 and one 

in his two innings. He nevertheless 

finished second from the top on the list 

of South African batsmen by scoring his 

72 runs in the series at an average of 24. 

In 1901 Bisset was again appointed as 

captain of the South African team to 

tour England. No tests were played 

during this tour (apparently partly because 

the Anglo-Boer War was by then 

in full swing and to avoid unnecessarily 

provoking further emotion), but Bisset 

enjoyed a highly successful tour and he 

was one of four batsmen to score more 

than 1000 runs on tour. Notwithstanding 

his youth, he did a fine job of both 

captaining and managing his side while 

on tour. JJ Kotze, one of his team 

members, wrote as follows on Bisset's 

leadership qualities: ``That [the tour of 

1901] proved such a happy one, with 

none of the usual petty jealousies, was 

in a great measure due to the tactful 

personality of our captain and manager, 

Murray Bisset, in whose choice we had 

the finest leader the game has produced 

in South Africa''. Bisset's third and final 

test was against the second MCC team 

which toured South Africa under the 

leadership of HDG Leveson-Gower in 

1909/10. South Africa won the rubber 

by winning three of the five tests, under 

the captaincy of Sibley John Snooke. 

Bisset only played in the fifth and final 

test and equipped himself well by 

scoring four and 27 not out, and he also 

took a catch. He finished fourth on the 

list of South African batting averages for 

this series. 

Sir Murray Bisset died in harness on 

Saturday, October 24, 1931 in Salisbury, 

Rhodesia at the age of 55. He had 

contracted rheumatic fever as a child 

and consequently suffered from a heart 

complaint all his life. At the time of his 

death he was once again acting Governor 

of Southern Rhodesia in the absence 

of Sir Cecil Rodwell. He was given a 

state funeral in Salisbury on Monday, 

October 26, 1931. In a personal tribute, 

the Premier of Southern Rhodesia, HU 

Moffat, emphasised Sir Murray's simple 

unaffected dignity, his charm of manner 

and his interest in humankind as only a 

few of his more laudable characteristics. 

Other tributes that were published in the 

dailies of that time, included one by 

Judge PST Jones who described Bisset as 

a person with a constant and strict 

devotion to duty which led to his early 

success in life, but, unfortunately, also 

to his all too early death. Advocate 

R Close KC described him as someone 

with a ``sane outlook in public affairs'', 

while Advocate Porter Buchanan KC 

recalled the time when General JC 

Smuts referred to Sir Murray as a man 

``capable of filling any position with 

distinction''. 

Sir Murray Bisset was survived by his 

wife and their minor son, Archibald 

Hamilton Murray Bisset. Arguably, out 

43

of all the South African international 

cricketing lawyers, Sir Murray Bisset 

had the most distinguished legal career. 

1 

Sir Murray Bisset as batsman, judge and bowler 


1 (See Anon ``Law Examinations'' (1899) 16 The Cape Law Journal 225; Anon ``Late Sir Murray Bisset'' Cape 

Argus Monday 26 October 1931 11; Anon ``The Rhodesian State Funeral'' Cape Argus Monday 26 October 

1931 12; Brian Bassano South African Cricket Annual 1999 Vol 46 (1998) 152; Cape Archives: `Èstate: 

Murray Bisset'' (ref no 32100); K Clayton (ed) Doc Craven's Tribute ± The Legends of Springbok Rugby 1889± 

1989 (1989) 64; William H Coleman South Africa versus England & Australia ± Test Cricket 1888±1924 (1926) 

22±25; Michael Collins & Chris Dutton Top South African Cricket Playing Schools (1998) 28; Brian Crowley 

Currie Cup Story (1973) 34±39, 41, 56±57, and 73; CJ Beyers (ed) Dictionary of South African Biography Vol 

IV (1981) Vol IV (1981) sv ``Bisset, Murray'' 30±31; Paul Dobson Bishops Rugby: A History (1990) 190; 

Ken Donaldson (ed) South African Who's Who (Social and Business) 1931±1932 (1932) 24; FR ``Mr Justice 

Murray Bisset'' (1927) 44 SALJ 115; JA Heese South African Genealogies Vol 1 (1986) 290; Robin 

Isherwood and Philip Bailey Western Province Cricketers: 1889/90 ± 1995/96 (1996) 5 and 21; Robin 

Isherwood and Philip Bailey Transvaal Cricketers: 1889/90 ± 1993/94 (1995) 6 and 26; Ellison Kahn Law, Life 

& Laughter (1991) 103; MW Luckin The History of South African (1915) 131±132, 145±146, 150±151 and 

670±686; Donald McIntyre A Century of Bishops (1949) 7n1, 33, 47, 76, 90 and 106; JAT Morris & Ira G 

Emery Springboks ... Past and Present (c1947) ``Cricket''; AC Parker WP Cricket ± 100-not out (1990) 21, 22, 

27 and 195; AA Roberts A South African Legal Bibliography (1942) 349; and Jonty Winch Cricket's Rich 

Heritage ± A History of Rhodesian and Zimbabwean Cricket 1890±1982 (1983) introduction.) 

44

A brief discussion on counterfeit 

goods and the Counterfeit Goods 

Act 37 of 1997 1 

R Songca, Lecturer in Law, University of the 

North 

Mongwadi o re botsÏa ka bohodu bja go 

kopisetsÏa selo sa motho yo mongwe gomme o 

se dire tsÏe nkego ke sa gago goba o dire tsÏe 

nkego kgopolo ya go dira selo sa mohuta woo 

etsÏwa go wena. Mongwadi o re botsÏa ka fao 

go dira ka mokgwa wo go sego molaong ka 

gona le ka ga molaotheo woo o dirilwego go 

thibela bohodu bja mohuta wo. O re botsÏa 

gape le ka kotlo ya semolao yeo e ka 

hlagelago batho ba ba dirago ditiro tsÏa go 

swana le tsÏeo ka ntle le tumelelo ya molao. 

Kafushane nje lo mbhali usitshela 

ngomthetho othintana nezomgunyathi, ikakhulukazi 

kwezokuhweba ngezimpahla. Lo 

mthetho ukhombisa ubuye uphawule ngezinkinga 

ongase unqwamane nazo uma 

uhweba ngokungekho emthethweni kanye 

nokuthi lokhu kuhweba ngomgunyathi sekusabalale 

kwadlodlobala kangakanani 

emhlabeni jikelele. Ubuye udingide izinto 

ezivamise ukusekela noma nje eziphakamisa 

izinga lezokuhweba ngezimpahla zomgunyathi. 

1 Background 

The recent progression towards deregulation 

of capital markets and globalisation 

has encouraged many developing 

and underdeveloped countries to open 

their markets to foreign investment. To 

make foreign investment a reality, most 

of these countries lifted or relaxed their 

currency exchange controls, import and 

export tariffs, and developed their intellectual 

property laws to bring them in 

line with international trends: for instance, 

some of these countries, including 

South Africa, became signatories to 

intellectual property law conventions 

such as the Paris and Berne Conventions. 

This change in attitude encouraged 

investors in developed countries to 

invest in these countries. Nevertheless, 

some developed countries are still wary 

of investing in developing countries. 

This reluctance is attributable to a 

variety of reasons. Some developing or 

underdeveloped countries are perceived 

to be economically and politically unstable. 

Their instability impacts negatively 

on them and this makes investors 

uneasy. Nationalisation laws in most of 

these countries are either unclear or 

their enforcement procedures are inadequate. 

Investors (and intellectual property 

owners) therefore fear that they 

might lose their intellectual property 

rights. Some investors have, despite 

these risks, taken conscious decisions 

to invest in these countries and to 

transfer their technology. 

There are advantages as well as 

disadvantages to the transfer of techno- 


1 I would like to thank my colleagues Adv R Letseku and Adv E Phindela for their assistance. 


45

logy across national borders. When 

negotiating technology transfer agreements, 

host governments and other 

relevant bodies usually base their decisions 

on important economic development 

goals. For instance, host 

governments might prefer technology 

which will satisfy the needs of those 

industries which have been chosen as 

priority sectors for development. The 

main goal of most developing countries 

is to concentrate on technology which 

will result in the improvement of balance 

of payments. Achieving this goal 

entails promotion of exports, substitution 

or reduction of imports and minimisation 

of foreign payments abroad, 

especially in those countries with exchange 

controls. 

The obvious risk of transferring technology 

(including intellectual property 

rights) to foreign countries is that the 

investor runs the risk of losing the 

technology, or a competitor may be 

created. Worse still, there is always the 

risk of pirating. Although there are 

domestic laws in various countries 

regulating intellectual property rights, 

proprietors' rights have been greatly 

threatened by, among other things, 

counterfeit goods. The discussion below 

will briefly look at the problem of 

counterfeiting, at why some people 

embark on this activity, and at laws 

which have been enacted to eradicate 

this problem. 

2 Why regulate counterfeiting? 

Counterfeiting of commercial goods is a 

growing problem to legitimate trade and 

has rapidly increased worldwide. Counterfeiting 

is an elaborate and sophisticated 

business, which is conducted in a 

clandestine manner. This practice has 

adversely affected proprietors of trademarks 

and copyrights. Counterfeiting is 

an extremely lucrative business and a 

comparatively low-risk venture. 

2.1 Arguments for counterfeiting 

Some people might feel that there is a 

need for this activity especially in 

developing or underdeveloped countries. 

They might argue that it is a cheap 

way of earning money and that it may 

also play a crucial role in contributing to 

economic development. They might feel 

that paying for the technology is too 

expensive and restrictive; such restrictions 

may be perceived by some as 

limiting their rights to free economic 

activity, and as an invasion of their 

privacy. Dealing in counterfeit goods 

might provide dealers with a livelihood 

and consumers might gain because they 

will be buying goods at a cheaper price. 

Their attitude at times is to wonder who 

exactly stands to gain by the regulations 

imposed on the availability and use of 

technology. They might regard regulations 

as a means used to protect foreign 

investors at the expense of economic 

development in these countries. 

2.2 Arguments against 

counterfeiting 

Counterfeiting is regarded by some 

people as a crime or fraud, especially 

in countries which have proscribed the 

activity through legislation. Counterfeiting 

may be regarded by some as fraud 

because consumers are being deceived 

into believing that what they are buying 

is worth their money. The government, 

especially where counterfeiting is regarded 

as a crime or is taking place, is 

also defrauded. Moreover, manufacturers 

or distributors of such goods do 

not pay any taxes on their unlawful 

activity. 

It is difficult to justify the activity on 

either moral or policy grounds. Morally, 

it is wrong to deceive people into buying 

goods which have been counterfeited 

regardless of how cheap the goods 

might be. Secondly, the unsophisticated 

consumer has a right to be warned that 

46

what he or she is buying may not be 

what it appears to be. 

Counterfeiting may be regarded not 

only as a moral hazard but also as an 

activity which has to be prohibited on 

policy grounds. Regulation of intellectual 

property rights is imposed not only 

as a measure to protect foreign investors 

but it is also aimed at encouraging fair 

competition and international business 

relations. Those who spend money and 

time in pioneering new technology 

should be compensated, and likewise 

those who are interested in using it 

should pay for it. If a developing 

country does not have any rules to 

regulate the use of technology and 

inventions, developed countries will be 

reluctant to make their technology available 

in these countries by way of either 

licence or franchise; moreover, lack of 

regulation will discourage people from 

being innovative. 

3 Counterfeit Goods Act no 37 of 

1997 

Until recently, the Merchandise Marks 

Act 17 0f 1941 was mainly used to 

regulate counterfeiting. The Act unfortunately 

proved to be inadequate. The 

writer is of the view that its failure was 

mainly due to inadequate enforcement 

procedures and the negligible rights 

given to officers responsible for its 

enforcement. With the sudden increase 

in counterfeiting the government had no 

choice but to enact legislation to counter 

the problem. Moreover, South Africa 

became a signatory to the Trade Related 

Aspects of Intellectual Property Law 

(TRIPS). As a signatory, it has an 

obligation to amend its laws and to 

bring them in line with the international 

standards stipulated in the agreement. 

The result was the Counterfeit Goods 

Act: it came into operation on 1 January 

1997. 

3.1 Objectives 

The main objectives of the Counterfeit 

Goods Act 37 of 1997 are to protect the 

owners of trade marks, copyrights and 

certain marks under the Merchandise 

Marks Act 1941, against the unlawful 

application to goods of the subject 

matter of their respective intellectual 

property rights; in addition, the Act's 

other objective is to counter the release 

of counterfeit goods in the market. To 

effectively put an end to the practice of 

counterfeiting, the Act has conferred on 

certain officers and private individuals 

the powers to perform certain acts. 

The discussion below will look at acts 

which constitute counterfeiting, powers 

that have been conferred on certain 

persons and penalties that can be imposed 

once a person is found guilty of 

the activity. 

4 Definitions 

Under section 1(1)(iv)(a) counterfeiting 

means, without the authority of the 

owner of any intellectual property 

right subsisting in the Republic in 

respect of protected goods, the manufacturing, 

producing or making, 

whether in the Republic or elsewhere, 

of any goods whereby those 

protected goods are imitated in such 

a manner and to such a degree that 

those other goods are substantially 

identical copies of the protected 

goods. 

Subsection (b) in casu proscribes the 

imitation of protected goods whether in 

South Africa or elsewhere whereby the 

goods which result in such an imitation 

are calculated to be confused with or to 

be taken as being the protected goods of 

the said owner; or any goods manufactured, 

produced or made under the 

owner's licence. Section 1(1)(c) includes 

in the definition of counterfeiting 

47

any activity prohibited under section 15 

of the Merchandise Marks Act 1941. 2 

The Act prohibits among other things 

the manufacturing, production or making 

of similar goods whether in the 

Republic or elsewhere, where the similarity 

may create the impression among 

people who deal in such goods that the 

goods are the same as, or belong to, the 

owner thereof. 3 Under the Act `òwner'' 

includes any person who has the capacity 

in law to enforce the intellectual 

property right in his or her name. 4 The 

Act also refers to goods which are 

calculated to be confused with the goods 

of the owner. 5 It is the writer's submission 

that when applying this section, 

the courts should determine whether 

people who deal with the goods are in 

fact confused, or whether there is a 

probability as opposed to a possibility of 

their being confused by the similarities. 

The test should be similar to that 

applied to other intellectual property 

cases (eg trademark infringement 

cases), based on the average consumer's 

perception or on the likelihood of the 

average consumer's becoming confused. 

The Act defines counterfeit goods 

as goods that are a result of counterfeiting. 

6 It also prohibits and penalises 

dealing in counterfeit goods. 7 

5 Laying a complaint 

Section 3(1) describes who has locus 

standi to bring a complaint. The Act 

makes provision for private persons to 

lay claims. A private person can, in 

terms of section 3(1) of the act lay a 

claim with any inspector. (The latter has 

to be appointed or designated by the 

Minister of Trade and Industry.) 8 Section 

3(2)(a) states that the complainant 

must satisfy the inspector that the goods 

in question are prima facie counterfeit 

goods. The section further states what 

such proof could entail. 

Peddling streetwise designer wear 

The inspector is required to take 

appropriate action once he has satisfied 

himself of the existence of certain 

factors: for instance, the inspector has 

to satisfy himself that the complainant 

is either the owner of the protected 


2 Section 15 of the Merchandise Act 17 of 1942 (as amended) allows the Minister of Economic Affairs and 

Technology, or any other Minister appointed by the State President, to prohibit either conditionally or 

absolutely the use of any marks, letters or figures, as the case may be, in connection with a trade-mark, 

mark or trade description applied to goods. 

3 1(1)(a) of the Counterfeit Goods Act 37 of 1997. 

4 1(1)(xiii). 

5 1(1)(b). 

6 1(1)(v). 

7 2(1)(a)-(g) and 2(2)(a)-(b). 

8 Sergeants and/or higher members of the South African Police Services have the right to enforce the Act. 

48

goods, licensee, distributor, importer or 

exporter thereof, or the duly appointed 

agent or representative of such a person. 

9 Secondly, the inspector has to 

satisfy himself that the intellectual 

property right, the subject matter of 

which is alleged to have applied to the 

offending goods prima facie, subsists. 10 

6 Inspectors' powers and their 

extent in relation to counterfeit 

goods 

The Counterfeit Goods Act, unlike the 

Merchandise Marks Act, has given 

wider powers to certain persons who 

enforce the Act. Inspectors may, in 

terms of section 5(1) and on the 

authorisation of a warrant, enter and 

inspect any place, premises or vehicle, 

on or in which goods that are reasonably 

suspected of being counterfeit goods are 

to be found. 11 The section also permits 

inspectors, provided they are police 

officials or assisted by a police official, 

to search or stop any vehicle and if 

necessary to use force to stop such 

vehicle wherever it may be found, be it 

on a public road or at any other public 

place. 

7 Duties of the inspector following 

seizure 

An inspector is required in terms of 

section 7(a)±(d), once goods have been 

seized, to seal, clearly identify and to 

take an inventory of the same in quadruplicate. 

The person from whom the 

goods have been seized is obligated to 

satisfy himself or herself of the correctness 

of the inventory. 

The inspector is also required to 

furnish the person from whom the 

goods were seized with an original of 

the inventory as well as a copy of any 

complaint made against such a person 

within 72 hours after the seizure. 12 The 

goods have to be kept as soon as 

possible at a counterfeit goods depot; if 

the goods cannot be moved easily they 

have to be sealed, locked up and placed 

under guard at the place they were 

found. 13 An inspector has a duty to 

inform, by written notice, certain persons 

of the address where the goods 

have been kept. 14 Once a notice has 

been made the complainant or prospective 

complainant may lay a complaint 

with the inspector, or lay a criminal 

charge with the South African Police 

Service, within three days after the date 

of the notice against the suspect about 

commission of an offence in terms of 

section 2(2) of the Act. 15 

The complainant may be required by 

the inspector to disclose any information 

which may be relevant to the action 

that has been taken. 

Any person prejudiced by a seizure of 

goods may at any time apply to the court 

on notice of motion for a determination 

that the goods seized are not counterfeit 

goods, and for an order that the goods be 

returned to him or her. 16 The court has a 

discretion to grant or refuse such an 

order. If it decides to refuse the order, it 

may, in addition, require the complainant 

to furnish security to the applicant 


9 3(2)(b). 

10 3(3)(b)(ii). 

11 5(i)(a). 

12 7(1)(b). 

13 7(1)(c). 

14 The inspector has a duty to inform the complainant and the person from whom the goods were seized. 

15 7(2)(b). 

16 7(4)(a). 

49

in an amount to be determined by the 

court. 17 

8 Orders that may be issued by the 

court 

Section 10 has given wider powers to 

courts. The courts may, in addition to 

their powers in criminal and civil 

proceedings, make the following orders: 

. that the goods if found to be counterfeit 

be delivered to the owner of the 

intellectual property right, or to any 

assignee or licensee 

. that the counterfeit goods be delivered 

to any person mentioned in the court 

order 

. that the complainant pay both damages 

and costs in an amount determined 

by the court to the person from 

whom the goods were seized 

. that the accused/defendant disclose 

the source from which the counterfeit 

goods were obtained as well as the 

identity of the persons involved with 

those counterfeit goods 18 

In terms of section 11(1) of the Act 

the owner of the intellectual property 

right can, if he or she reasonably 

suspects that dealing in counterfeit 

goods is taking place, apply ex parte to 

a judge in chambers for a warrant 

authorising a search of any place or 

premises and the seizure of any documents 

or records or of any goods alleged 

to be counterfeit goods. 

. The applicant can also apply for an 

order directing the respondent to 

disclose or make available to the 

sheriff or designated person goods or 

material that are relevant to determine 

whether the subject goods in question 

are counterfeit goods or are relevant to 

any transactions or dealings in counterfeit 

goods and to permit the sheriff 

or designated person to attach such 

goods as well as ancillary materials. 

. The applicant can apply for an order 

restraining the respondent from interfering 

with the state of the subject 

goods or ancillary materials during 

the search, seizure, attachment or 

removal or continuing in any act of 

dealing in counterfeit goods. 

. Application can be made by the 

applicant requiring the respondent to 

desist from carrying out or continuing 

with the act of dealing in counterfeit 

goods. 19 

The application will be heard in 

camera unless the court is satisfied that 

hearing the case in open court will not 

prejudice the applicant. 20 The court will 

grant the application only if it is 

satisfied that the applicant has a prima 

facie case against the respondent, and 

that the right to discovery of documents 

is likely to be frustrated, or evidence in 

connection with the goods is likely to be 

destroyed or so altered or placed or be 

disposed of in such a manner as to 

effectively preclude the applicant from 

having access to the relevant goods. 21 

The court may grant or refuse the 

relief sought or grant any order it may 

deem just and appropriate. The court 

may further order 

. the sheriff or designated person to rely 

upon the assistance of knowledgeable 

persons, specified in the order, in 

identifying the subject goods and 

ancillary matters 

. the applicant to furnish security to the 

respondent in an appropriate amount 


17 7(4)(b) and (4)(c). 

18 10(1)(a)±(d). 

19 11(a)±(d). 

20 11(2). 

21 11(3). 

50

equal to a specified percentage of the 

value of the goods 

. that a rule nisi be issued calling on the 

respondent within 20 days to show 

cause why an interdict and other 

orders should not be granted or confirmed 

. to restrain the respondent pendite lite 

from infringing the applicant's intellectual 

property right(s) 

. that the applicant should institute 

proceedings against the respondent 

for the infringement of intellectual 

property rights by a specified date; if 

no date has been stipulated, the 

applicant must institute the said proceedings 

within 20 days. 22 

Once a search has been authorised under 

section 11(4), the respondent will be 

entitled to have his/her attorney present 

during the search and execution, provided 

the attorney's presence can be 

secured. 23 The sheriff or designated 

person must be accompanied by the 

applicant's attorney who after service 

at the premises has to explain to the 

respondent or the person in charge of 

the premises where the goods are kept of 

the terms of the order. 

The sheriff or designated person conducting 

the search must prepare an 

inventory of the goods and ancillary 

materials attached by him/her and furnish 

a copy of the inventory to both the 

applicant and the respondent. The designated 

person must allow the parties 

to peruse and copy attached ancillary 

materials and allow parties to inspect 

and to have the goods tested or analysed. 

24 Once a search authorised under 

section 11 is complete the applicant's 

attorney must without delay make a 

statement under oath or affirmation, 

reporting fully on the way the search 

was conducted and of any steps taken in 

relation to the search. 25 

The unsuccessful applicant may be 

ordered to pay appropriate compensation 

to the respondent for any prejudice 

caused to or suffered by him. 26 It should 

be noted that the action is available 

against the applicant, not the State, 

inspector, or person in charge of the 

counterfeit goods depot or persons 

working under their supervision. The 

latter categories of persons will be liable 

only if they were grossly negligent, or if 

the seizure, removal, detention or storage 

was done in bad faith. 27 

9 Penalties 

A person convicted of dealing in counterfeit 

goods may, if he or she is a first 

offender, be subjected to a fine not 

exceeding R5 000,00 per article or item, 

or with imprisonment for a period that 

may not exceed three years, or to both 

such a fine and imprisonment. 28 

In the case of a second or any 

subsequent conviction, a convicted person 

will be punishable with a fine, in 

respect of each such article or item, that 

may not exceed R10 000,00 per article 

or item, or with imprisonment for a 

period that may not exceed five years, or 

with both such fine and such term of 

imprisonment. 29 In imposing a penalty 

the court has to consider any risk to 

human life or animal life, health or 

danger to property, whether movable or 


22 11(5)(a)±(e). 

23 12(1). 

24 Stassen K ``Rationalisation of intellectual property rights'' De Rebus (1998) 362: 45 at 47. 

25 12(4)(a). 

26 13(1). 

27 17(1) and (2)(a)±(b). 

28 19(1)(a). 

29 19(1)(b). 

51

immovable, that may arise from the 

presence or use of the counterfeit goods 

in question. 

The court may in mitigation of sentence 

consider the fact that the accused 

cooperated fully with the inspector or 

the South African Police Service in 

furnishing information relating to the 

counterfeit goods. 30 

10 Other permissible orders 

following a conviction for 

dealing in counterfeit goods 

Once a person has been convicted of an 

offence under section 2(2), the court 

may declare the counterfeit goods in 

question to be forfeited to the State or 

order that they be destroyed. 

Any aggrieved person who unknowingly 

bought the goods may submit 

them together with proof of the purchase 

price to the inspector, who will 

ensure that the aggrieved person is 

repaid three times the amount of the 

original price, provided 31 

. the seller was convicted of dealing in 

counterfeit goods or an order was 

made against the seller directing that 

the goods be delivered up to the owner 

of the intellectual property right, or to 

any complainant deriving his or her 

title from that owner. 32 

11 Conclusion 

The Counterfeit Goods Act will no doubt 

play a meaningful role in curbing the 

problem of counterfeiting. Practice has 

shown that counterfeiting is a problem 

not just in Third World countries but 

throughout the world. Whether intellectual 

property rights or the transfer of 

such rights across national borders 

should be protected and regulated by 

legislation and international agreements 

has sparked a lot of debate in developing 

and underdeveloped countries. The notion 

shared by some is that technology 

should neither be regulated by legislation 

nor be paid for. They blame lack of 

access and know-how on colonialism 

and its resultant ills. However, some 

accept the view that, as a matter of 

policy and international relations, people 

who want to make use of advanced 

technology must pay for it. The public, 

especially innocent retailers and consumers, 

need to be protected. Legislation is 

an essential evil to discourage ``free 

riders'' and to encourage sound international 

business relations. 


30 19(1)(b). 

31 20(2). 

32 20(2)(a). 

52

Onderhoud Ð eers weeskind, nou 

stiefkind 

M Kelly, Lektrise, Departement Handelsreg, 

Universiteit van Suid-Afrika 

Mongwadi o bolela ka phegisÏano ye o e lego 

gona mabapi le molao o mofsa wa phepo. 

Mongwadi o bolela gore molao wo ga o 

rarolle mathata a go kopanwego le ona 

mathomong ka gore molao wo o sa palelwa 

ke go sÏoma gabotse. Seo se hlokagalago ke go 

fetolwa ga dikgoro tsÏa tsheko le mekgwa ya 

go sÏoma ka mathata a a swanago le a. 

Kulo mthetho omusha kuxoxiswana ngokuqhutshwa 

komthetho wesondlo. Inkinga edingidwayo 

ngeyokuthi yize usuphasisiwe 

ngabezeminyango yomphakathi, nokho wona 

awuzixazululi izinkinga ebelokhu zikhona. 

Kubonakala sengathi izinkinga zidalwa 

ukugodlwa kwamakhono nokuteleka kwabantu 

abasebenza ngezomthetho. Okudingekayo 

nokungasiza kakhulu ukuba kuguqulwe 

isimo sangaphakathi sezinkan-tolo. 

1 Inleiding 

Daar word met die nuwe Wet op Onderhoud 

99 van 1998 (`die Wet') gepoog om 

verligting te bring op hierdie eens wees 

gebied. Alle bepalings van die nuwe 

Wet, behalwe artikels 5, 7(1)(d) en 7(2), 

het op 26 November 1999 in werking 

getree. Aangesien die Wet onder meer 

beoog om uitvoering te verleen aan die 

Konvensie oor die Regte van die Kind, 

waartoe Suid-Afrika op 16 Junie 1995 

toegetree het, bevat dit 'n aantal bepalings 

oor die plig van ouers om hul 

kinders te onderhou. 1 'n Onderhoudsbevel 

vir die onderhoud van 'n kind is 

gerig op die afdwinging van die gemeenregtelike 

plig van die kind se ouers 

om daardie kind te onderhou. 2 

2 Nuwe Wet ± ou probleme 

Die nuwe Wet poog om die probleme 

van die verlede op te los, maar bied geen 

werklike verligting nie aangesien die 

proses, infrastruktuur en fasiliteite onveranderd 

bly. 

Die nuwe Wet maak steeds daarvoor 

voorsiening dat: 


1 Koos Stassen `Ònderhoud'' De Rebus Februarie 2000 42. 

2 Artikel 15(1) van die Wet. 


53

. elke landdroskantoor binne sy regsgebied 

'n onderhoudshof is 3 

. elke aanklaer in 'n bepaalde landdroshof 

outomaties aangestel is as 

onderhoudsbeampte vir daardie hof 4 

. die Minister van Justisie of sy gedelegeerde, 

onderhoudsbeamptes na 

willekeur kan aanstel 5 . 

Die enigste werklike wending is dat 

daar nou verder ook voorsiening gemaak 

word vir die aanstelling van 

onderhoudsondersoekers 6 wat onder andere 

. die verblyf van persone naspoor 7 

. die prosesstukke van 'n onderhoudshof 

beteken of ten uitvoer leÃ 

8 

. getuiedagvaardings en strafdagvaardigings 

beteken 9 

. verklarings onder eed of bevestig 

neem van persone wat in staat mag 

wees om tersaaklike inligting omtrent 

die onderwerp van 'n klagte met 

betrekking tot onderhoud te versterk 10 

. inligting inwin 11 . 

Die klaers beskik gewoonlik nie oor 

enige adresse of verdere inligting van 

die teenpartye nie, en verwag dan van 

die hof om laasgenoemde op te spoor. 

Voorheen is daar wel van opspoorders 

gebruik gemaak, maar dit het meestal 

maande geduur voor so 'n party opgespoor 

is, indien ooit. Dit word dus sterk 

betwyfel of die nuwe onderhoudsondersoekers 

enige verligting sal bring. Die 

Wet bepaal verder, indien 'n persoon 

teen wie 'n onderhoudsbevel gegee is 

van woon- of werkplek verander tydens 

die duur van die onderhoudsbevel, hy of 

sy binne sewe dae na die dag waarop so 

'n verandering gemaak is, skriftelik 

daarvan kennis moet gee aan die onderhoudsbeampte 

van die hof waar die 

gemelde onderhoudsbevel verleen is, 

en, indien betaling kragtens daardie 

bevel aan 'n persoon, beampte, organisasie 

of inrigting moet geskied, dan ook 

aan sodanige belanghebbende aan wie 

betaling gemaak moet word en hy of sy 

moet verder volledig en duidelik aandui 

waar sy of haar nuwe woon- of werkplek 

geleeÈ is. 12 Alhoewel hiervoor voorsiening 

gemaak word, meld onderhoudspligtiges 

selde, indien ooit hul veranderde 

adres aan. 

Dagvaardigings word gereeld nie deur 

howe uitgereik nie en relase word ook 

dikwels nie op die leÃ ers geliasseer nie 

wat daartoe lei dat lasbriewe nie uitgereik 

kan word nie. As gevolg van die 

swak administratiewe proses by die 

meeste howe dring klaers daarop aan 

om met die bystand van oÂ f die balju oÂ f 

polisie die dagvaardings self op teenpartye 

te beteken. Hierdie metode is nie 

suksesvol nie, omrede die polisie eenvoudig 

nie die nodige mannekrag en tyd 

het om die klaers by te staan met 

voormelde betekening nie. Die klaer is 

dan genoodsaak om self gemelde dagvaarding 

te beteken in 'n wanhopige 

poging om die hofproses te bespoedig. 

Dagvaardings word gewoonlik verkeerdelik 

deur klaers bedien en is dan 

gevolglik nutteloos. 

Onderhoudsafdelings word gewoonlik 

aangetref in die mees afgesonderde 

gedeelte van die hofgebou. Pretoria se 


3 Artikel 3 van die Wet. 

4 Artikel 4(1)(a) van die Wet. 



7 Artikel 7(2)(a)(i) tot (iv) van die Wet 

8 Artikel 7(2)(b) van die Wet. 

9 Artikel 7(2)(c) van die Wet. 

10 Artikel 7(2)(d) van die Wet. 

11 Artikel 2(e)(i) tot (iii) van die Wet. 


54

afdeling is byvoorbeeld onder in die 

kelderverdieping, dit is donker en daar 

is bykans geen vensters nie. Die Johannesburgse 

afdeling bestaan grootliks uit 

'n kort gang met klipharde bankies, 

waar daar voorsiening gemaak word 

vir ongeveer tweehonderd mense ten 

spyte van die feit dat daar op 'n daaglikse 

basis vier- tot vyfhonderd mense 

opdaag. Daar word verder veels te min 

aanklaers aangewys om die onderhoudsondersoeke 

waar te neem. Daar is soms 

slegs een of twee aanklaers beskikbaar 

om die sowat vier- tot vyfhonderd 

mense te help terwyl hoftye van 8h30 

tot 15h30 vasgestel is, wat dan verder 

veroorsaak dat howe laat 'n aanvang 

neem. Dit is gevolglik prakties onmoontlik 

om by informele ondersoeke 

uit te kom. Die meeste klaers sit of staan 

van vroeg oggend tot laat middag om 

gehelp te word, net om uiteindelik 

ingelig te word dat die hoftyd verstreke 

is en dat hul saak uitgestel gaan word tot 

'n verdere datum, waartydens die kringloop 

homself net herhaal. 

In Johannesburg byvoorbeeld, word 

die partye se name uitgeroep deur die 

tolk of hofordonans, dit alleen duur 

ongeveer 'n uur of twee. Die verhore 

vir die dag word geskei van die informele 

ondersoeke waar slegs een party 

of beide teenwoordig is. Die verkillende 

hofleÃ ers word dan dienooreenkomstig 

op 'n tafel geplaas en die aanklaers roep 

die sake na willekeur. Dik leÃ ers word 

dikwels laaste geroep, omrede die vooruitsig 

op skikking gewoonlik skraal is. 

Dun, nuwe leÃ ers word om die teenoorgestelde 

rede eerste geroep. Die enkel 

partye word deur 'n spesifiek geõÈ dentifiseerde 

aanklaer geroep, wat dan oÂ f 

lasbriewe laat magtig oÂ f nuwe dagvaardings 

uitreik. Daar word ook herhaaldelik 

in die gange aangekondig dat die 

partye wat informeel geskik het voorkeur 

sal ontvang, wat partye uit radeloosheid 

laat blyk dat hul wel geskik 

het, net om vinniger weggehelp te word. 

Alhoewel daar nou voorsiening gemaak 

word vir die regte en priviligie van 

getuies, 13 poog partye steeds as gevolg 

van beperkte hoftyd om in die gange te 

skik, soms selfs deur intimidasie. 

Die informele ondersoeke vir die 

bepaling van onderhoud word gewoonlik 

in camera in aanklaers se kantore 

gehou. Die kinders word dan saamgebring 

om by die ondersoeke teenwoordig 

te wees, wat opsigself ook nadelige 

gevolge het. Partye bring ook met tye 

hul nuwe maats saam wat tot verdere 

konflik lei. 

Die omstandighede by sommige van 

die partye se wonings is so haglik dat 

aanklaers selfs welsynwerkers moet 

aanstel om die omstandighede te ondersoek. 

Met die terugkeer van gemelde 

partye word dan gewoonlik gevind dat 

die welsynwerkers nie die saak ondersoek 

het nie. In Johannesburg byvoorbeeld 

het verskeie welsynsorganisasies 

reeds die hof in kennis gestel dat hul nie 

in staat is om onderhoudsake te ondersoek 

nie. 

Partye doen as gevolg van die groot 

daaglikse toeloop van mense gereeld 

ernstig aansteeklike siektes op. Daar 

breek gereeld siektes en epidemies uit, 

en dit is veral kindersiektes wat gereeld 

voorkom. 

Mishandelde vrouens daag daagliks 

met hul kinders op in hul stryd om 

onderhoud. Daar is selfs gevalle waar 

verkragte vrouens onderhoud van hul 

verkragters eis. Hierdie sake is gewoonlik 

uiters sensitief en behoort met groot 

omsigtigheid hanteer te word. Die infrastruktuur 

maak egter geensins hiervoor 

voorsiening nie. 

3 Onvoldoende kinderfasiliteite 

Kinders vergesel meestal die onder- 



55

houdsbehoeftige. Daar is egter geen 

fasiliteite vir hierdie kinders by die 

howe nie. Vrouens ruil vuil doeke in 

die gang om en daar word mildelik in 

die gang voor die publiek geborsvoed. 

Die openbare ablusiefasiliteite van die 

howe is gewoonlik ver van die onderhoudsafdeling 

af. Die kleedkamers is 

gewoonlik onhigieÈ nies en geen voorsiening 

word getref vir klein kinders nie. 

Vrouens wat wel die badkamers ter wille 

van hul kinders benut loop die risiko dat 

hul saak in hul afwesigheid geroep mag 

word en dan begin hul stryd weer van 

voor af om die teenparty by die hof te 

kry, aangesien die saak van die rol 

verwyder word. 

4 Bevele steeds problematies 

Die bepalings van die vorige wet 14 met 

betrekking tot bevele wat deur 'n onderhoudshof 

opgeleÃ word, word uitgebrei 

deur die nuwe Wet en sluit die volgende 

in: 

. Onderhoudsbevel. 15 

. Bevel ten opsigte van mediese uitgawes, 

16 wat betaling aan die moeder 

vir geboortekostes in verband met die 

geboorte aangegaan, insluit. 17 

. Bevel oor die wyse van betaling. 18 

. Bevel dat 'n persoon wat ingevolge 'n 

kontrak periodiek bedrae aan die 

onderhoudspligtige moet betaal daardie 

betalings aan die onderhoudsgeregtigde 

moet maak. Die onderhoudsgeregtige 

ontvang dus by wyse 

van informele sessie die onderhoudspligtige 

se vorderingsreg (dit was 

voorheen slegs van toepassing op 

werkgewers). 19 

. Bevel by toestemming. 20 

. Bevel aangaande koste van betekening. 

21 

. Bevel aangaande koste van vaderskapstoetse. 

22 

. Vir die eerste keer word daar nou 

voorsien vir bevele by verstek. Die 

Wet magtig 'n onderhoudshof om 'n 

bevel by verstek teen 'n onderhoudspligtige 

uit te reik, wat kennis dra van 

'n dagvaarding wat teen hom uitgereik 

is en desnieteenstaande versuim 

het om voor die onderhoudshof te 

verskyn op die datum en tyd daarin 

vermeld. 23 

'n Onderhoudshof kan, op versoek 

van die onderhoudsbeampte, gelas dat 

twee foto's van die persoon teen wie die 

onderhoudshof 'n onderhoudsbevel gegee 

het geneem word. 24 Hierdie bepaling 

kan nuttig aangewend word 

aangesien talle onderhoudspligtiges by 

die gepoogde betekening van prosesstukke 

identiteit doodeenvoudig aan die 

niksvermoedende uitvoerende beampte 

ontken. 

Die nuwe Wet maak geensins voorsiening 

vir die praktiese uitvoerbaarheid 

van bevele nie. Mediese fondse word 

misbruik en probleme ontstaan in gevalle 

waar die fonds vereis dat vooraf 

magtiging verkry moet word by die 

onderhoudspligtige. Dit is meer prakties 

om bloot die onderhoudsbedrag te verhoog 

en die onderhoudsbehoeftige of sy 

voog dan self daarvoor te laat voorsien. 


14 Die Wet op Onderhoud 23 van 1963. 


16 Artikel 16(1)(a)(i) van die Wet. 

17 Artikel 16(1)(a)(ii) van die Wet. 

18 Artikel 16(1)(a)(i) van die Wet. 

19 Artikel 16(2)(a)(iii) van die Wet. 



22 Artikels 21(3) en (4) van die Wet. 



56

Dit realiseer gewoonlik nie, omdat dit 

onbekostigbare onderhoudspaaiemente 

vir die onderhoudspligtige meebring. 

Die meeste onderhoudspligtiges is in 

elk geval werkloos en beskik oor geen 

mediese fonds nie. 

Daar verdwyn daagliks hoeÈ volumes 

hofleÃ ers. As gevolg van gemelde swak 

administrasie en die gebrek aan tegnologie 

by die meeste howe, bevat die 

hofleÃ er dikwels die enigste en oorspronklike 

onderhoudsbevel. Die klaer 

is dan in 'n netelige posisie en moet 

selfs mondelinge getuienis aanbied om 

sodanige bevel te bewys, terwyl die 

onderhoudspligtige die bestaan daarvan 

eenvoudig ontken. 

Onderhoud word soms by die hof 

inbetaal, omrede klaers nie bankrekenings 

besit nie. Daar is gevolglik gereeld 

lang rye by die kontantkantoor waar 

onderhoudsgelde afgehaal word. Onderhoudbehoeftiges 

is sagte teikens en 

word by hierdie kantoor of buite die 

hofgebou beroof. Baie van die inheemse 

bevolkingsgroepe verkies dat kontant 

aan hulle persoonlik betaal word en 

daar word gevolglik nie boekgehou van 

betalings gemaak nie, wat verder tot 

bewysregtelike komplikasies lei. Dit is 

verkieslik om betaling by wyse van 'n 

aftrekorder te laat geskied. Partye moet 

seker maak dat hul onderhoudsbevel 

ook prakties uitvoerbaar is en daar 

voorsien word vir die eskalering van 

onderhoud. 

By strafverrigtinge aangaande agterstallige 

onderhoud word die situasie 

vererger deurdat onderhoudsbehoeftiges 

nie bewys van betalings hou nie. Die feit 

dat die partye self informeel ooreenkom 

om die maandelikse paaiement te vervang 

met ander vorms van vergoeding 

wat teenstrydig is met die hofbevel is 

geensins bevorderlik vir die proses nie. 

Die bedrag word self informeel by 

Oorvol onderhoudshowe 

ooreenkoms verminder of vermeerder 

en daar vind ook selfs skuldvergelyking 

tussen partye plaas. Die kinders bly om 

die beurt by die verkillende ouers en dan 

word onderhoud ook informeel tussen 

die partye aangepas. Skuldigbevindings 

vir agterstallige onderhoud vind minimaal 

plaas. 

5 Betwiste vaderskap 

Gevalle van betwiste vaderskap kom 

gereeld voor en bloed- en weefseltoetse 

speel 'n groot rol hierin. Die meeste 

partye beskik nie oor die nodige fondse 

om self hiervoor te betaal nie. Die hof 

beveel gewoonlik dan dat die staat die 

koste voorlopig betaal 25 en die uitslag 

van die toets die finale terugbetaling 26 

daarvan sal bepaal. Na bekendmaking 

van die uitslae van vaderskapstoetse 

word die kostebevele selde, indien ooit, 

deur die voorsittende beampte bevestig. 

Bloedtoetse is nie bepalend nie en 

partye word dikwels terugverwys vir 

weefseltoetse. Dit is 'n duur en tydsame 

proses, aangesien babas eers 'n sekere 

ouderdom moet bereik voordat hierdie 

toetse suksesvol uitgevoer kan word. 


25 Artikel 21(3)(a) van die Wet. 


57

Alhoewel tussentydse onderhoudsbevele 

vir die afwagtende tydperk gemaak 

kan word, gebeur dit selde indien ooit, 

en indien wel, op versoek van 'n 

behoeftige wat 'n prokureur of 'n advokaat 

kan bekostig. Aanklaers begryp nie 

die gekompliseerde uitslae van hierdie 

toetse nie en ontvang geen opleiding 

hierin nie. 

6 Ongemotiveerde 

onderhoudsbeamptes 

Aanklaers word nie opgelei om onderhoudsondersoeke 

te hanteer nie en 

neem gereeld ``stresverlof'' omrede die 

werk hul negatief beõÈ nvloed. Gevolglik 

word produktiwiteit verlaag en vind 

afwesigheid vanaf die werk gereeld 

plaas. Aanklaers ontvang geen opleiding 

om sodanige situasies te hanteer 

nie. Baie aanklaers word soms vir jare in 

die onderhoudsafdeling geplaas, ongeag 

versoeke aan hulle meerderes om ``geskuif'' 

te word. Die aanklaers roteer 

gewoonlik nie in hierdie afdeling nie 

en sommiges het nog nooit in die 

strafhof verskyn nie. Aanklaers in hierdie 

afdelings is gewoonlik depressief en 

negatief teenoor die gesinslewe. 

Indien aanklaers meer gereeld afgewissel 

sou word en ook opleiding ontvang 

om hierdie situasies te hanteer sal 

die posisie verseker in 'n groot mate 

verbeter. Die oplossing kan moontlik 

gevind word deur onder andere welsynwerkers 

aan te stel ten einde hierdie 

funksies te verrig en aanklaers slegs te 

gebruik om die strafsake te hanteer. Dit 

blyk egter problematies te wees aangesien 

verskeie welsynsorganisasies reeds 

hul onwilligheid om te help in die 

verlede laat blyk het. Sielkundiges kan 

verder genader word ten einde van hulp 

te wees met berading en opleiding. 

7 Gemeenskap ± outeur van sy eie 

lot 

Hierdie is maar net nog 'n simptoom 

waar ons regstelsel te kort skiet ten 

einde die probleme van ons roekelose en 

onverantwoordelike gemeenskap op te 

los. Daar is diegene wat planloos deur 

die lewe worstel. In hul bitterheid en 

frustrasie blameer hul ander, omstandighede 

of die regsisteem vir hulle 

probleme. Die kern leÃ egter in hul 

onvermoeÈ om konstruktief te beplan. 

Sonder beplanning is dit onvermydelik 

dat chaotiese toestande spoedig sal volg. 

Wie misluk in sy beplanning, beplan sy 

mislukking. Inkomste word geensins in 

ag geneem by gesinsbeplanning nie. 

Beide ouers is gereeld werkloos en 

steeds verwek hul kinders. Voorbehoeding 

word ook nie benut nie, ten spyte 

daarvan dat dit gratis by onderhoudsafdelings 

uitgedeel word. Vrouens gaan 

voort en skenk verder geboorte aan 

kinders by mans wat reeds nie hul 

vorige kinders onderhou nie. Mans 

verdien R400 per week en dan het hulle 

vier tot ses kinders by verskillende 

vrouens. Geen wet, ongeag die streng 

maatreeÈ ls of verhoogde strawwe 27 geskep 

vir nie-betaling van onderhoud, 

kan vir die gebreke van die samelewing 

vergoed nie. 

8 Slotsom 

Geen wet, ongeag die verandering of 

toepassing daarvan sal enige verligting 

bring solank die opleiding, mannekrag, 

infrastruktuur en proses by die howe 

onverander bly nie. Die nuwe Wet 

verander bloot die weeskind na die 

stiefkind van die reg. 


27 Artikels 31 tot 39 van die Wet. 

58

Conceptualising and internalising 

the Certificate Programme in Law 

± a maiden voyage 

Chris le Roux, Lecturer, New Testament, 


Chris Le Roux, yo mongwe wa bafahlosÏi ba 

yunibesithi ya Afrika Borwa lefapheng la tsa 

ditumelo (theology) e be e le yo mongwe wa 

barutwana ba `Certificate Programme in 

Law' yeo e fiwago ke ba lefapha la setlogo sa 

molao(Jurisprudence) o fana ka maikutlo 

mabapi le setifikeiti se. Mongwadi o leboga 

ka mokgwa woo a bulegilego mahlo ka gona 

go tsa molao e bile o bolela le ka mokgwa 

woo a kgonago go sÏomisÏa molao bophelong 

bja gagwe bja ka mehla.O fana le ka maele 

a go re thuto go ba setifikeiti se se ka 

kaonafatsÏwa ka mokgwa ofe. 

Ukucabangisisa nokuqondisisa ngesikhathi 

osisebenzisa lapho uphenya ngezifundo 

zomthetho ezingaphansi komnyango weJurispudence 

e-UNISA. Umfundi kumele abonise 

ulwazi lwakhe njengomfundi omdala 

ukuze akwazi ukuthola isitifikethi (certificate) 

sohlelo olwenziwa kulo mnyango wezomthetho. 

Kubuye kuboniswe nokuthi lolu 

hlelo lungathuthuka futhi lufafazwe kanjani 

ukuze lwaziwe. 

1 First words 

The only time I had ever been confronted 

with the long arm of the law (or 

so I thought a year ago), was when my 

neighbour once threatened to sue me for 

damages after our cat had caught and 

devoured some of his finest gold fish 

from the garden pond. Furthermore, the 


closest that I have ever come to a Bar 

(except maybe a Bar One), was the BAR 

course I teach in the Department of New 

Testament, faculty of Theology and 

Religious Studies, at Unisa. In my preprogramme 

in Law frame of reference 

Bar only referred to Biblical Archaeology 

and the law was meant for criminals 

only. 

So there I was at the beginning of 

1999, naõÈ vely legally illiterate, with a 

desperate need to fill this gap in my 

education. One day in our department's 

tearoom my eye fell on an advertisement 

on this programme. Two days later I 

was enrolled and a week after that I 

received my little blue file. I started 

59

eading and was immediately enchanted 

by the legal reality around me. It is now 

one month before the final examination 

for this certificate programme and I 

have been on top of the world for the 

last eight months or so. I had been 

translocated from the world of excavation 

dust, potsherds, ancient religious 

rituals, tombs and maps of the holy land 

to a world of legal rights and wrongs, 

regulations, legal officials, human rights 

and duties. Maybe ancient biblical rituals 

and customs are after all not so far 

removed from legal theory and practice. 

Do they not all aim at achieving order 

and regularity in society? Are we in 

these two faculties not both interested in 

standards and rules that determine how 

people should behave and interact with 

one another? 

This is however not an article on the 

comparison between Law and Theology, 

but a reflection on the time I spent 

exploring the canopy of the legal jungle 

through Unisa's Department of Jurisprudence's 

Certificate Programme in Law. 

The aim of this communicatio is therefore 

threefold: 

. First, to reflect publicly on my personal 

experience as adult learner enrolled 

for this programme. 

. Secondly, to contribute critically and 

creatively towards the improvement 

of this programme for the benefit of 

future learners (I am aware of the fact 

that the programme is currently being 

revised). 

. Thirdly, to market this certificate 

programme. 

I freely chose to write this article as 

learner in the light of the current quest 

for quality in teaching that is so prevalent 

at Unisa and at all other tertiary 

institutions in South Africa and even 

world wide. This is therefore my contribution 

to quality assurance and learner-centredness 

in higher learning and 

teaching at Unisa. 

The structure of the article will follow 

the two main concepts contained in the 

heading, namely conceptualising and 

internalising the certificate programme 

as a whole. 

A translocation from excavation dust to 

the world of law. 

2 Conceptualising 

With this I simply mean the way in 

which I ``see'' the programme in my 

mind. It is a meta-cognitive structure in 

my mind's eye that I see whenever I 

reflect on what I am dealing with or 

when I communicate the essence of the 

programme to someone who wants to 

know more about what I have been 

studying this year. This broad concept of 

the course can, to my mind, be a good 

place to start for those lecturers involved 

in the redesigning of the programme. It 

contains the big plan or the pillars on 

which the finer detail can be built. 

First, I conceptualise a broad introduction 

to the programme, consisting of 

three crucial themes, namely 

. What is ``the law''? How are laws 

made and by whom? How does one 

read and interpret these laws? 

60

. The origin and sources of South 

African law. 

. The legal professionals and their 

relationship to our system of courts. 

This would form the basis of a 

learner's understanding of legal matters 

and would prepare him or her for what 

is to come in the rest of the programme. 

Secondly, I see one overarching concept, 

namely The Constitution. It seems 

to me of utmost importance to indicate, 

right from the start of the programme 

and in a variety of ways, what the 

relationship of the Constitution is to 

the rest of our legal system. Examples 

(in the form of newspaper clippings) 

and case studies could fruitfully be 

included in the study material to demonstrate 

the fact that ``Parliament now 

has to exercise its legislative authority 

subject to the Constitution and the 

courts must test all laws to ensure that 

they are not in conflict with the Constitution'' 

(Module 1, Unit 3, p 37). 

Thirdly, with regard to the way in 

which I conceptualise this programme, I 

see fourteen (14) smaller units of study, 

each dealing with one aspect of the big 

entity referred to as Law. These smaller 

themes are entwined in the current 

modules, named (somewhat artificially 

to my mind) Private Law, Public Law 

and Commercial Law. I am of the 

opinion that from the viewpoint of the 

learner these small units of study will 

make for more digestable ``chunks'' of 

learning within the programme. These 

smaller units of study are: 

. human rights law 

. constitutional law 

. law of persons 

. law of husband and wife 

. law of parent and child 

. law of succession 

. law of contracts 

. law of delicts 

. administrative law 

. international law 

. environmental law 

. criminal law 

. procedural law 

. commercial law 

. insolvency law 

. labour law 

With this three-layered structure the 

learner will be able to ``file'' any piece of 

legal information that he or she comes 

across in everyday life. Example: A 

newspaper report in BEELD of 13 September 

1999 about a lady claiming 

damages from the Road Accident Fund, 

but being denied it because of their 

being married under the Islamic custom. 

The learner's mind jumps into motion 

and the unit on The law of husband 

and wife immediately comes to mind. 

``Higher up'', in the structure of the 

course as highlighted above, the learner's 

mind immediately links the case 

in point to the prescriptions of the 

Constitution (human rights) and still 

``higher up'' to the sources of our law 

and the kind of legal professional and 

courts this lady could approach to state 

her case. 

Integration of content of this kind is 

definitely the catalyst to critical questions 

in the mind of the learner, such as 

the possible inclusion of non-African 

customary practices in South Africa as 

part of indigenous African law. Is this 

not the kind of student that a university 

aims to ``produce'', namely a critical, 

independent thinker? 

This structure or concept of the 

programme that I have highlighted 

above has gone a far way in making 

the content of the programme more 

useful to me in everyday life. 

3 Internalising 

In simple terms this is the process 

through which external information is 

transformed into internal knowledge, 

skills and attitudes. In the context of 

61

Outcomes Based Education (which 

has, through the South African Qualifications 

Authority become law in the 

South African education system) I 

would like to take the opportunity to 

formulate the (course-related, exit-level) 

outcomes I have achieved after studying 

this programme. They are: 

1 A basic and introductory knowledge 

regarding my rights and duties as a 

South African citizen, regarding the 

fourteen aspects of the law discussed 

in the learning content (cf 

the 14 proposed units mentioned 

earlier in this article). 

2 The competence (skills) to apply my 

(although introductory) knowledge 

of the law to events in everyday life 

that relate to the abovementioned 

facets of the law. These skills 

include, among others, the ability to 

. distinguish between what is lawful 

conduct and what is not 

. select the correct legal structures 

and procedures in event of dealing 

with occurrences with legal 

implications, such as the drawing 

up of a will, which court to 

approach with a specific legal 

matter, how to react when I am 

criminally offended, what to take 

into account when signing a 

contract, etc. 

. place events of economic, social 

and political nature (which one 

hears about through the news or 

reads about in the newspapers) 

within the South African legal 

framework as indicated in (1); 

for example labour actions, incidents 

of child abuse, international 

treaties, women's rights, 

laws passed by Parliament, commissions 

of enquiry to ensure 

clean administration, etc. 

3 A positive attitude towards the legal 

system in South Africa and officers 

of the law, on the one hand, and an 

appreciation of efforts to rectify the 

inequalities of the past to establish a 

system of true democracy through 

sound constitutionalism, on the 

other hand. 

It may appear strange to some (students 

and lecturers) that I have not listed 

``passing the examinations and acquiring 

a certificate'' as one of my outcomes. 

This is not due to the fact that at 

the time of writing this article I have not 

yet written the examination, but because 

my learning experience has not been 

content based, but competence driven 

instead. This is the ultimate philosophy 

of OBE, namely to deliver competent 

individuals who can think independently 

and who can integrate bits and 

pieces of reality into one meaningful 

whole. Learners should however, not 

like myself, realise the outcomes of their 

learning right from the first day they 

start their learning process. Course 

designers and course revisers ought to 

decide beforehand what learners ought 

to have achieved once they have completed 

this course. 

It seems also that designers of a 

programme of this nature should walk 

the extra mile to support learners in 

achieving the outcomes they envisage 

for their learners. Opportunities ought 

therefore to be created for learning 

activities incorporated into the material. 

Learners should be motivated to read the 

newspapers and to relate specific reports 

to specific sections of the work. Spaces 

for these activities have to be included in 

the material. This will surely assist the 

learner in both processes of conceptualisation 

and internalisation. A multimedia 

package (including tape cassettes 

with case studies and a video that shows 

the inside of a court and its proceedings) 

will be valuable in relating the contents 

of the course to the legal reality around 

us. 

62

4 Last words 

It is with a trace of sadness that I am 

nearing the end of my learning experience 

in this programme. Fortunately 

there are many more law certificates to 

choose from offered by the Faculty of 

Law at Unisa. I have had an empowering 

and enlightening experience. I am 

facing the new millennium convinced of 

the fact that now, for the first time in my 

life, I am basically legally literate. I 

applaud the lecturers involved in this 

programme during 1999 with my best 

(and only) functional Latin: Viva, Department 

of Jurisprudence, Viva! 

63

64 

A SERIES OF MONOGRAPHS ON EDUCATION LAW 

The Interuniversity Centre for Education Law and Education Policy 

(CELP) ± founder members Unisa and University of Pretoria ± is proud 

to announce the first five monographs in the series Education Transformation. 

The titles are: 

1 Foundations of law and education law 

2 Human rights in education 

3 Administration of the education system and school governance 

4 An educator's guide to labour law 

5 Discipline 

The monographs are written in an easy, user-friendly style, each 

with a comprehensive list of sources and approximately 90±110 

pages. These titles would be useful to legal practitioners, 

educationists, education managers, school governors, students 

and all persons interested in education in South Africa. The focus 

of the monographs is on the application of education law in the 

general education and training sector, therefore, mainly school 

law. 

How to order the set of five monographs: 

Send a cheque/postal order made out to 

. CELP for the 

. total amount of R200 (registered postage included). Please quote 

. your full postal address and contact numbers. 

(Price per monograph is R50 ± registered postage included; indicate 

title/number) 

Mail to: 

CELP 

Department of Education Management 

University of Pretoria 0002 

For more information contact: 

Melanie Hechter tel: 012 420 3484 fax: 012 420 3723 

email: celp@hakuna.up.ac.za

About books ± Oor boeke 

WORKPLACE LAW 

J GROGAN, fourth ed, Juta & Co Ltd, 

1999, pp xxx and 330 plus index. Price 

R145,00 (VAT included) 

The author needs no introduction. 

When he left his position as Professor 

and Head of Department of Law at 

Rhodes University to go into private 

practice as labour lawyer at the end of 

1997, he was described as one of the 

most prolific writers on labour law in 

South Africa (see the description on the 

cover of the fourth edition of Workplace 

Law). Indeed, when the first edition of 

Dr Grogan's work landed on the bookshelves 

in 1996, it had the distinction of 

being the first published work on the 

Labour Relations Act, 66 of 1995 (the 

LRA). Since then, the author remained 


true to his reputation of being on the 

cutting edge of developments in the 

field of labour law. Simple proof of this 

statement is the fact that the three years 

that have passed since the coming into 

force of the new Act, have each seen a 

new edition of the work. 

The fourth edition was necessitated 

mainly by the promulgation of the 

Employment Equity Act, 55 of 1998. 

The purpose of this Act is twofold. 

Firstly to achieve equity in the workplace 

by promoting equal opportunities 

and fair treatment in employment 

through the elimination of unfair discrimination. 

Secondly, the Act aims to 

implement affirmative action measures 

in an attempt to redress the disadvantages 

in employment experienced by 

blacks, coloureds, Indians, women and 

65

the disabled, in order to ensure their 

equitable representation in all occupational 

categories and levels in the workforce. 

At the time of writing of the fourth 

edition, this Act had not yet been put 

into operation (see p 10). Subsequently, 

chapter IV of the Act (that provides for 

the establishment of the Employment 

Equity Commission) has been put into 

operation (see proc R 55 of 1999, 

Government Gazette no 20057 dated 14 

May 1999). It therefore seems as if this 

piece of legislation is now well and truly 

with us. In view of this, it is a pity that 

Grogan was (as far as I could ascertain) 

unable to benefit from the commentary 

by Andrew Levy, Implementing Employment 

Equity: A Practical Guide, Butterworths 

1999. Chapter 15 simply gives a 

brief overview of this important piece of 

legislation (pp 207±213). No doubt the 

author will, in a subsequent edition, 

devote more time and space to this Act 

whose provisions are bound to have a 

marked effect on the labour market. 

The second innovative piece of legislation 

considered in the fourth edition, 

is the new Basic Conditions of Employment 

Act 75 of 1997. A brief overview 

of the main provisions of this Act is 

given on page 6 whereas a more indepth 

discussion may be found in 

chapter 5 under the heading ``Basic 

employee rights'' (pp 55±68). 

In the preface, the author sounds the 

warning that the fourth edition also had 

to be completed in some haste. No 

doubt, some mistakes are bound to find 

their way into the final product as a 

result. In a subsequent edition, the 

author may consider correcting the 

mistake that was made on page 28 note 

11. In Council for Scientific & Industrial 

Research v Fijen (1996) 17 ILJ 18 (A), 

Harms JA did not express the view that 

it was necessary to evoke the concept of 

an implied term to infer the duty of 

employers and employees to refrain 

from conducting themselves in a manner 

``calculated or likely to destroy or 

seriously damage the relationship of 

trust''. Instead, the learned judge held 

that such a duty flowed from the 

naturalia of the contract of employment 

(see page 26 of the judgment). The 

author also fails to clearly distinguish 

between the essentialia and the naturalia 

of a contract as is evident from the 

following statement in that same note: 

``... where the parties do not agree on 

the naturalia of a particular form of 

contract, no contract arises of that sort 

or, perhaps, at all''. It is obvious that 

what the author meant to refer to here, is 

the essentialia of a contract. Whereas the 

essentialia denote those terms of a contract 

that are immutable and without 

which no contract of that sort would 

arise, the naturalia may be described as 

those results that follow from the nature 

of that particular contract. Unlike the 

essentialia that may not be varied by the 

parties (that is, if they still would like 

that specific contract to retain its basic 

character), the naturalia may be varied 

or even excluded by express agreement 

between the parties. (See Christie The 

Law of Contract in South Africa (1996) 

page 177.) 

A present shortcoming of the work is 

the brief space devoted to the section on 

dispute resolution. Paragraph 8 (Procedures) 

in chapter 21 that deals with the 

procedures that must be followed in 

seeking relief from either the CCMA or 

the Labour Court comprises no more 

than one page. From a practitioner's 

point of view, this is a serious defect. It 

is a basic truth that legal remedies can 

be pursued only by recourse to courts of 

law and, in the labour law context, the 

CCMA. As a result, the task of the 

labour law practitioner does not end 

after he or she has concluded that the 

client has a good cause of action or 

defence. Problems such as `Ìn which 

court should the proceedings be insti- 

66

tuted?''; ``What form should the proceedings 

take?''; ``What documents 

must be prepared and filed with the 

court?'' need to be dealt with. Courts 

and the CCMA are bound by rules 

governing their procedure and will only 

entertain legal proceedings if they are 

satisfied that they are competent to do 

so and that the proceedings have been 

instituted in the proper form and are 

being conducted in the proper manner. 

To illustrate the above with an example: 

a conciliator is required to investigate 

jurisdictional facts, which would 

include whether the applicant was an 

employee as defined or whether the 

referral forms have been correctly completed 

(see Etschmaier v CCMA [1999] 20 

ILJ 144 (LC)). In Rustenburg Platinum 

Mines Ltd (Rustenburg Section) v CCMA 

(1998) 19 ILJ 327 (LC) it was held that a 

labour law consultant may not sign the 

referral form LRA 7.11 on behalf of the 

dismissed employee. The relevance of 

such information in a work such as 

Workplace Law is obvious and it is hoped 

that the author will devote more attention 

to this aspect of labour law. 

However, it cannot be denied that the 

work as a whole is deserving of praise. 

Its merit lies primarily in the lucid 

manner in which it is written and the 

logical presentation of the subject matter. 

As a result, the author succeeds in 

explaining difficult and perplexing issues 

in a manner that makes them easily 

accessible to the novice. The text is well 

furnished with references to both reported 

and unreported court and CCMA 

cases. The work also includes Schedule 

8 of the LRA that contains a Code of 

Good Practice: Dismissal. (The reference 

on page 313 to ``Sub-sections 1±11'' in 

the heading, should be to `Ìtems 1± 

11''). The table of cases as well as a 

table of contents, increases the practical 

value of the work. 

The author may perhaps consider 

including a table of statutes as well 

where the reader could also find references 

to specific sections of acts that are 

discussed or referred to in the work. 

In the preface to the fourth edition, 

the author remarks that labour law is a 

swiftly developing and often perplexing 

area of law. The need for an annual 

update bears testimony to the rapid 

changes that appear to characterise this 

area of law. The perplexity of the subject 

is no doubt greatly lessened by this work 

which has become almost a household 

name amongst both academics and 

practitioners alike. The book remains 

one of the (surprisingly) few introductory 

textbooks dealing with labour law 

in a comprehensive manner. It is a must 

for students of labour law, lecturers in 

this field, labour consultants and even 

labour law practitioners. 

BEN STOOP 

Pretoria Bar 

67

From the law reports ± Uit die 

vonnisverslae 

CIVIL PROCEDURE / SIVIELE 

PROSESREG 

Rescission of judgment in a Magistrates' 

court ± interpretation of section 

36(a) of the Magistrates' Courts 

Act 32 of 1944 ± whether a person 

who is physically not present but is 

represented at proceedings by a 

practitioner is `àbsent'' or not in 

terms of section 36(a) of the Act ± De 

Allende v Baraldi t/a Embassy Drive 

Medical Centre 2000 (1) SA 390 

This case concerns an appeal. This 

appeal relates to the interpretation of 

section 36(a) of the Magistrates' Courts 

Act 32 of 1944. Section 36(a) provides 

that the court may rescind or vary any 

judgment granted by it in the absence of 

the person against whom that judgment 

was granted. In casu, when the respondent 

applied to rescind the judgment in 

terms of section 36(a) of the Act, the 

appellant objected because the respondent 

was not absent. He had been 

represented at the hearing by his attorney. 

The magistrate in the court a quo 

overruled this objection and granted an 

order rescinding the judgment. This led 

to the present appeal. 

The real issue is whether the judgment 

was granted in the absence of the 

respondent when the respondent was 

represented by his attorney. The court 

considered Rule 52(1)(a) and Rule 

52(1)(b) in reaching its conclusion. Rule 

52(1)(a) provides that a party may 

institute or defend and may carry to 

completion any legal proceedings either 

in person or by a practitioner. Rule 


52(1)(b) provides that artificial and legal 

persons may act through an officer 

nominated for that purpose. A practitioner 

may represent both natural and 

artificial or legal persons. A practitioner 

includes an advocate, an attorney or an 

articled clerk. The court found that legal 

representation means that if the practitioner 

represents the natural or artificial 

person in court, that person is not 

absent. Therefore, when the judgment 

was granted against the respondent he 

was not absent because he was represented 

by his attorney. Therefore, section 

36(a) does not apply. 

This case is authority for the preposition 

that when judgment is granted 

against a litigant who is not physically 

present, but who is represented at the 

proceedings by a practitioner, the court 

is not authorised in terms of section 

36(a) to vary or rescind the order afterwards. 

Appeal ± whether magistrates' court 

order for setting aside of a default 

judgment is appealable or not in 

terms of section 83(b) of Magistrates' 

Courts Act 32 of 1944; Rescission 

of judgment ± Rule 49(1) and 

49(2) of Magistrates' Courts Rules 

restated ± De Vos v Cooper and Ferreira 

1999(4) SA 1290 

The respondent firm of attorneys had 

acted for the appellant in a contested 

divorce action which was later settled. 

After the settlement, the respondent had 

the bills of costs as between attorney and 

client taxed by the Taxing Master of a 

Local Division. The appellant stated that 

he had not been given notice of the 

taxation. Therefore, he made no further 

payment in respect of the costs. The 

respondent then sued the appellant in 

the magistrate's court for the balance of 

the taxed costs which was R 28 000. The 

appellant filed a notice of intention to 

defend one day late as a result of a 

mistake. This led to a default judgment 

being entered against him by the clerk of 

the court. The respondent opposed the 

appellant's application for the rescission 

of the default judgment. The respondent 

contended in limine that the appellant 

had failed to comply with Rule 49(2) of 

the Magistrates' Courts Rules because he 

had not set out the grounds of his 

defence in the application. The magistrate 

rejected the point in limine and 

granted the application for rescission 

with attorney and client costs on the 

ground that the respondent's opposition 

to the application had been ``vexatious 

and unnecessary''. The respondent appealed 

against both the magistrate's 

order on the merits and the costs order. 

It also took the matter on review on the 

ground that the magistrate had not, after 

deciding the point in limine against it, 

allowed it to argue its case in full. 

The Provisional Division criticised the 

magistrate for not allowing the respondent 

to submit further arguments on the 

merits and on costs. However, the court 

disposed of the review proceedings by 

stating that it was not necessary to deal 

with them any further. This led to a 

further appeal to the Supreme Court of 

Appeal. 

The Court found that the magistrate's 

order for the rescission of the default 

judgment was an order that had no final 

or decisive effect on the issues in the 

main action. It was not a final judgment 

that was appealable under section 83 (b) 

of the Magistrates' Courts Act 32 of 

1944. However, the magistrate's order 

regarding costs was separately appealable 

under section 83(b). 

The Court found that the court's 

conclusions regarding the review application 

was an order against the respondent 

and it was the respondent's duty to 

institute a cross-appeal if its intention 

was to take it further. There was therefore 

no appealable order regarding the 

review application. 

The Court considered the respondent's 

69

contention that the appellant's application 

for rescission did not comply with 

Rule 49(2). The Court considered the 

appellant's explanation that his failure 

to file his intention to defend timeously 

was a result of his error in having 

informed his attorney that the particular 

summons had been served on him on a 

Thursday and not on a Wednesday. His 

explanation covered everything that had 

been done one day late including late 

delivery to the respondent of the notice 

of intention to defend. His explanation 

was found to be acceptable. Court also 

considered the appellant's failure to set 

out the grounds of his defence. It found 

that respondent's allegations regarding 

the efforts to inform the appellant of the 

taxation required a reply from the 

appellant. The appellant's failure in this 

regard meant that he had not complied 

with the second requirement of Rule 

49(2) which requires the grounds of 

defence to be stated (it is interesting to 

note that Rule 49(2) is now restated as 

Rule 49(3) in the present Rules). The 

question arose whether he had disclosed 

a defence at all. The Court also found 

that the appellant had not shown ``good 

cause'' for setting aside the default 

judgment and that the magistrate had 

made a mistake in doing so. Therefore, 

the magistrate's costs order had to be set 

aside but his order on the merits had to 

stand since it was not appealable. 

The court considered the costs in the 

Court a quo and held that it was 

equitable that each party should pay its 

own costs in the Court a quo. The Court 

considered the costs of the appeal to the 

Supreme Court of Appeal and held that 

the appellant had been substantially 

successful and was therefore entitled to 

his costs of appeal. 

FAWZIA CASSIM 

LAW OF PERSONS/PERSONEREG 

Requirements for establishing 

domicile of choice ± Toumbis v 

Antoniou 1999 (1) SA 636 (W) 

This was an application in terms of rule 

47 of the Uniform Rules of Court for 

security for costs. The respondent opposed 

the application on the grounds 

that he was both domiciled and resident 

in South Africa. 

The respondent was an alien with a 

temporary residence permit whose application 

for permanent residence was 

still pending, and who had married a 

South African citizen and acquired a 50 

percent stake in a pub. The court held 

that these facts supported the respondent's 

argument that he intended to 

remain in the country, and that the fact 

that the respondent could be deported in 

future did not prevent his acquisition of 

a domicile of choice in South Africa. 

The court added that the concept 

``residence'' should not be confused 

with the physical element necessary for 

the acquisition of a domicile of choice, 

and that the physical requirement for 

the acquisition of a domicile of choice is 

simply presence in the country concerned. 

The court further suggested in an 

obiter dictum that its decision would have 

been no different had the Department of 

Home Affairs decided to deport the 

respondent in the near future. The 

court's argument was that until the 

deportation recommendation had actually 

been issued the petitioner's domicile 

of choice remained. 

Custody by natural father of illegitimate 

child ± Wicks v Fisher 1999(2) 

SA 504 (N) 

The applicant and the respondent are 

both 23 years of age, and are both 

trained croupiers. When they were about 

18 years old, they became involved in a 

relationship, which led to the birth of a 

child, Calvin. The relationship was not 

stable, and it was terminated. However, 

70

the applicant and the respondent got 

back together for short periods before 

and after the birth of the child. After the 

birth of the child, the applicant paid 

maintenance for him. 

When the child was six months old, 

the applicant and the respondent both 

left for Israel in search of employment. 

The applicant returned within one 

month and continued to exercise the 

access to Calvin which he had previously 

done. While in Israel, the 

respondent met Hugo Mersey. She returned 

two months after the applicant. 

The respondent then spent about 16 

months at her parent's home with 

Calvin. In October 1996, she left for 

the United Kingdom. During her stay in 

the UK, she worked and obtained a visa 

which allowed her to reside there with 

the object of obtaining permanent residency. 

By this time, she had already 

formed a relationship with Hugo, who 

was also in the UK. When either the 

applicant or the respondent were out of 

the country, Calvin stayed with his 

maternal grandparents in Amanzimtoti. 

During her stay in the UK, the 

respondent visited Calvin on two occasions, 

and Calvin spent a three-week 

vacation with her in the UK. The 

respondent returned to South Africa in 

April 1998 with the intention of taking 

Calvin to the UK permanently where she 

had secured lucrative employment, and 

where she intended to settle. 

In May 1998 the applicant obtained 

an interim order against the respondent 

in terms of which she was restrained 

from removing Calvin from South Africa 

pending his institution of an action 

for the custody of the child. The rule was 

extended and the court undertook to 

give judgment on the return day. 

On the return day of the rule nisi, 

Pillay AJ pointed out that he had to be 

careful not to make a finding on the 

suitability of either parent to have 

custody of the child. That issue would 

be decided by the court which would 

hear the custody application. This was 

difficult, since the papers before him 

covered extensively the very issues 

which were excluded from a finding. 

Although he was not hearing the 

custody application, Pillay AJ pointed 

out that the natural father has a right to 

claim custody if it is proved that the 

custodian parent is not a fit and proper 

person to exercise custody, bearing in 

mind the fact that the decision has to be 

in the best interests of the child. As 

authority for this statement he quoted 

Douglas v Mayers 1987 (1) SA 910 (ZH) 

and BvS1995 (3) SA 571 (A). 

The court also mentions that it was in 

Calvin's interests to have access to his 

father unless there are very cogent 

reasons why this should not be so. Once 

a material bond has been established, 

which the court believes to be so in the 

present case, it is in the interests of the 

child that it be maintained (T vM1997 

(1) SA 54 (A)). 

However, the real issue before the 

court is whether Calvin should be 

allowed to go to the UK with his mother. 

Were the court to discharge the rule, it 

would have the effect of ousting the 

jurisdiction of the South African courts 

over Calvin, in the sense that the 

applicant would not be able to institute 

custody proceedings in South Africa, as 

the child would be in the jurisdiction of 

a foreign country. Were the court to 

confirm the rule, it would effectively be 

depriving the custodian parent of her 

right to choose her domicile and have 

her child with her. 

Pillay AJ added that while he had to 

have regard to the rules and the law 

which govern interdict proceedings, he 

also had to weigh up such considerations 

that he considered to be in the best 

interests of the child. 

Neither the respondent nor the applicant 

have stable employment records. 

The child is almost four years old, and 

71

the respondent spent only one continuous 

period (amounting to 16 months) 

with the child, not much when one 

considers that he is of tender age and at 

the most formative stages of his life. A 

great deal of consideration was given to 

the support from both the applicant and 

the respondent's families. 

The court then considered the implications 

that confirmation and discharge 

of the rule would have for both parties: 

(a) Confirmation of the rule would 

leave the respondent with two 

choices ± either she could give up 

the job in England and remain with 

her child pending finalisation of the 

custody application, or she could 

take the job and commute to keep in 

touch with the child. The advantage 

to the applicant if the court were to 

confirm the rule, would be obvious. 

He has access to the child and he 

can apply for custody. 

(b) Discharge of the rule would mean 

that the respondent could leave for 

England with the child. That would 

leave the applicant effectively with 

no basis for claiming, through South 

African Courts, for custody or access. 

Calvin enjoys the love and affection of 

the families of both the applicant and 

the respondent. He enjoys a stable 

family environment in South Africa 

and the move to the UK would obviously 

involve some changes. 

Pillay AJ made the following statements 

at 510F: 

Whilst I am mindful of the fact that a 

custodian parent has rights which 

prevail over those of a non-custodian 

parent, especially in respect of a child 

born out of wedlock, and I have been 

reminded that the modern trend is to 

move away from this concept, I am 

satisfied that, even if I err in this 

regard, and I do not believe that I 

have, the interests of the child are of 

overriding importance. (See s 28(2) 

of the Constitution of the Republic of 

South Africa Act 108 of 1996.) 

The court concluded that the applicant 

had established a prima facie right to 

apply for custody and therefore a prima 

facie right to the relief claimed. He had 

placed sufficient facts before the court to 

show that he has reasonable prospects of 

success. The balance of convenience 

favours the applicant, who has no 

alternative remedy but to approach this 

court for relief by way of an interdict. 

Pillay AJ said at 511H that `èven if the 

requirements for the interdict fall somewhat 

short of what is required for the 

granting thereof, and I do not believe 

that they have, the interests of the child 

weigh heavily in influencing me in the 

order which I propose making''. 

The court confirmed the rule nisi and 

ordered that the cost of the application 

should follow the result of the application 

for custody. 

HANNERETHA KRUGER 

Law of succession ± Certificate in 

terms of section 2(1)(a)(v) of the 

Wills Act 7 of 1953 ± Acceptance of 

document as will in terms of section 

2(3) ± O'Connor v The Master 1999 

(4) SA 614 (NCD) 

The Master refused to accept a document 

as the last will of the deceased, 

who was completely illiterate, because 

the certificate did not comply with the 

requirements of section 2(1)(a)(v) of the 

Wills Act. In terms of this section, a 

commissioner of oaths must certify that 

he has satisfied himself about the 

identity of the testator who signs his 

will by means of a mark and that the 

will so signed is the will of the testator. 

In the present case, an employee at the 

magistrate's office attempted to assist 

the deceased, who signed the will by 

72

means of a thumb print. He did not, 

however, identify himself as a commissioner 

of oaths, nor did he declare that 

he had satisfied himself about the 

identity of the testator. The court finds 

that the requirements of section 

2(1)(a)(v) have not been met, but orders 

the Master to accept the will in terms of 

section 2(3). The court finds that it is 

clear from the facts that the testator 

intended the document to be his will, 

and that there is no indication of 

impropriety or inkling of fraud in the 

execution of the will. The court consequently 

orders the Master to accept the 

document as a valid will. 

Erfreg ± Kondonering van gebrek 

aan formaliteite ± Artikel 2(3) van 

die Wet op Testamente 7 van 1953 ± 

Schnetler v Die Meester 1999 (4) SA 

1250 (KPA) 

Die oorledene het 'n handgeskrewe 

dokument opgestel waarin hy sy bates 

volledig uiteengesit het en 'n aantal 

``bemakings'' gemaak het. Die dokument 

is op die derde bladsy deur die 

oorledene self onderteken, maar geen 

getuies het dit onderteken nie. Die 

applikant, in sy hoedanigheid as eksekuteur 

van die boedel, het ingevolge 

artikel 2(3) van die Wet op Testamente 7 

van 1953 aansoek gedoen dat die hof die 

Meester moet gelas om die dokument as 

geldige testament te aanvaar. Die respondente 

is, onder andere, die testateur 

se intestate erfgename, wat uitdruklik in 

die dokument onterf word. Artikel 2(3) 

bepaal dat die hof die Meester moet 

gelas om 'n dokument as testament te 

aanvaar indien die hof oortuig is dat die 

oorledene bedoel het dat die dokument 

sy testament moet wees, ofskoon dit nie 

aan al die formaliteite voldoen nie. Die 

hof beslis dat dit uit die formaat, 

inhoud, struktuur en bewoording van 

die dokument duidelik is dat die oorledene 

bedoel het dat dit as sy testament 

moet geld, en gevolglik word die Meester 

ingevolge artikel 2(3) gelas om die 

dokument as geldige testament te aanvaar. 

Deliktereg ± outomatisme ± bewyslas 

± Molefe v Mahaeng 1999 (1) SA 

562 (HHA) 

Die appellant het 'n skadevergoedingsaksie 

ingestel teen die respondent vir 

skade gely in 'n motorbotsing waarin 

beide partye betrokke was. Die appellant 

het aangevoer dat die botsing ten volle 

veroorsaak is deur die respondent se 

nalatigheid. Die respondent het aanspreeklikheid 

aan sy kant ontken, en 

het aangevoer dat hy deur 'n skielike, 

onverwagte en onbeheerbare duiseligheid 

(``blackout'') oorweldig is, en dat 

dit veroorsaak het dat hy beheer oor sy 

voertuig verloor het. Die Hoogste Hof 

van AppeÁ l beslis (567I±J) dat die verweer 

van outomatisme, waarop die 

respondent in hierdie saak steun, nie 

'n invloed op die bewyslas het nie. Die 

appellant moes bewys dat die respondent 

nalatig opgetree het, en dit sluit in 

bewyse dat die nalatige optrede waarop 

gesteun word, inderdaad willekeurig 

was. Die hof beslis op grond van die 

feite dat die appellant nie daarin kon 

slaag om met 'n oorwig van waarskynlikheid 

te bewys dat die respondent se 

optrede willekeurig was, en dat hy nie 'n 

``blackout'' gehad het nie. 

TOMAS FLOYD 

Accessory after the fact ± Accessorial 

nature of ± Whether necessary to 

establish identity of perpetrator of 

principal crime ± Failure of policeman 

to report crime with intention 

of assisting perpetrator of crime to 

escape conviction and punishment 

± S v Phallo and Others 1999 (2) SACR 

558 (SCA) 

The accused, who were members of the 

police force, detained a person (the 

deceased) on suspicion of having parti- 

73

cipated in a robbery. The deceased was 

detained for purposes of interrogation 

and the pointing out of the place in the 

veld where he had allegedly hidden 

some of the stolen money. From the 

moment of his detention at 07:30 in the 

morning, until his death (which occurred 

no later than 16:00 the afternoon) 

he was in the company of all of 

the accused. The trial Court found that 

the deceased met an unnatural death by 

anoxia, probably as a result of suffocation, 

at the hand of one or more of the 

accused. The State did not request a 

conviction on the basis of common 

purpose to murder the deceased. Because 

it could not be established who 

actually committed the murder, the trial 

Court convicted the accused of being 

accessories after the fact to murder. The 

accused appealed against their convictions 

and sentences (the latter of which 

will not be discussed here) to the Full 

Bench of the High Court. Their appeal 

failed and they appealed to the Supreme 

Court of Appeal. 

The Supreme Court of Appeal found 

that the deceased had died of acute 

anoxia caused by an aggressive or 

unnatural act, and not by natural causes. 

The Court reasoned that, since the 

deceased had been in the company of 

only the appellants throughout the day 

in question, it follows that his death had 

been caused by one or more of the 

appellants. Having so found, the Court 

moved on to deal with the appellants' 

main argument against their convictions. 

The defence argued that an 

accessory, as the word implies, can be 

an accessory only is he or she aids 

someone who commits the primary 

crime. If no primary criminal can be 

identified, there can be no accomplice, 

and, therefore, the accused should have 

been acquitted. 

The Court pointed out that this argument 

is not a novel one in our law, and 

that it had been scrutinised in R v Gani 

and Others 1957 (2) SA 212 (A) in which 

case Schreiner JA launched what later 

came to be known in the legal literature 

as the ``Schreiner doctrine''. The Schreiner 

doctrine holds that, in a case where 

there are several accused who have tried 

to cover up a crime (by, for instance, 

hiding the body of the deceased) which 

may have been committed by only one 

of them, the accused persons other that 

the actual murderer commit the crime of 

being an accessory after the fact to his or 

her crime. That crime of theirs is their 

own distinct crime and not part of the 

crime committed by the murderer. If 

then the actual murderer acts in concert 

with them, he is, it is true, taking steps 

in the concealment of the murder 

committed by him but he is at the same 

time participating in their crime of being 

accessories after the fact to murder as 

their accomplice. All the accused can in 

such a case be convicted as accessories 

after the fact to murder. The Court 

mentioned that the Schreiner doctrine 

had been subjected to criticism, and that 

this criticism had been fully considered 

by the Appellate Division in S v Jonathan 

en Andere 1987 (1) SA 633 (A). The 

Appellate Division had found the criticism 

unimpressive and had approved of 

the Schreiner doctrine. In Jonathan it 

had been accepted that the Schreiner 

doctrine is based on ``gesonde beleid''. 

Gani had been followed in S v Munonjo en 

'n Ander 1990 (1) SACR 360 (A). 

The Court then dealt with the question 

whether on the facts of the case, the 

conviction was in order. To sustain a 

conviction of being an accessory after 

the fact in the present case, the prosecution 

had to prove that the accused had 

performed some act or acts intended to 

assist the principal offender to escape 

conviction. In this respect the prosecution 

relied inter alia on the failure of the 

appellants to report the true facts to a 

superior officer. The Court stated that in 

the ordinary course, mere failure to 

74

eport a crime is not unlawful and 

cannot result in a conviction of being 

an accessory after the fact. However, if a 

police officer fails to report a crime, or 

fails to make an entry in the occurrence 

book about it, or fails to disclose the 

identity of the perpetrator, such omission 

is unlawful. If the failure takes 

place with the intention of assisting the 

perpetrator of the crime to escape conviction 

and punishment, then the police 

officer is guilty of being an accessory 

after the fact to the principal offence on 

the basis of his or her omission. The 

Court found that the failure of all the 

appellants to disclose the true facts had 

been the result of a deliberate conspiracy 

to assist the principal offender or offenders 

to escape justice, and that the 

appellants were correctly convicted. 

Counsel for the appellants had argued 

that a conviction based on the mere 

failure to report the murder would be 

unconstitutional since the appellants 

had a constitutional right to silence, 

and, therefore, mere silence in the form 

of a failure to report the murder cannot 

be unlawful. The Court dismissed this 

argument. By virtue of their position as 

police officers, the appellants did not 

have a right not to report a crime 

committed in their presence. The Constitution 

has not abrogated, en passant, 

the duty of a police officer to be honest, 

to perform his or her lawful duties and 

obligations, or to report a crime committed 

in his or her presence. If such 

were to be the case, the administration 

of law and order would fall into an abyss 

of dishonesty and corruption. 

LC COETZEE 

75

From the dean's desk ± Van die 

dekaan se tafel 

76 

Professor Johann Neethling 

New Faculty structures: approval of 

final proposal by the Faculty Board 

As was pointed out in this column in 

our previous edition (1999 (2) Codicillus 

100±103), the Faculty structures came 

under scrutiny at a workshop held on 15 

June 1999. However, since consensus 

could not be reached at the workshop, it 

was decided to take the matter further by 

subjecting the differences among members 

of the Faculty to a process of 

extended facilitation. This was done 

under the competent management and 

supervision of Professor John Faris (as 

co-ordinator of the process), assisted by 

three facilitators (Dr M van Niekerk, Mr 

R Deppe and Mr H Roythorne-Jacobs). 

There were four workshops ± each one 

covering a different stage ± in orientation 

and problem-definition (19 Aug); 

generating options (26 Aug); problemsolving 

(31 Aug); and problem-solving 

(continued) (1 Sept). The final proposal 

was referred to the Executive Committee 

of Faculty (ECF), explained to the 

Faculty Board (10 September 1999) 

and departments (by Profs Faris and 

Schoeman), and, with minor amendments, 

provisionally, and finally unanimously, 

approved by the Faculty Board 

for a trial period of two years on 28 

February and 22 March 2000 respectively. 

The point of departure is that the 

problems that were identified provide 

sufficient indication that some change is 

necessary in the Faculty. Current moves 

in national education and in the University 

clearly demand a shift towards 

programme-oriented tuition, and financial 

circumstances demand greater flexibility 

and efficiency. Absolutely no 

change is not an option. At the same 

time, it is assumed that it is impossible 

to identify and implement all the necessary 

changes and developments simultaneously. 

A partial, interim model is 

therefore suggested that could place the 

Faculty on the road towards greater 

efficiency and flexibility, but that does 

Codicillus XXXXI No 1

not require more changes than are 

necessary and practicable in the short 

term. 

The underlying philosophy is that the 

current departmental structures are retained 

as they are, with two important 

qualifications: (1) individual departments 

are invited to consider and discuss 

the possibility of combining into 

fewer, larger departments on the basis of 

voluntary rationalisation; and (2) for the 

sake of greater efficiency and flexibility, 

certain functions that are currently 

duplicated in all departments are centralised 

to a certain extent, and the 

direction of initiative, responsibility 

and coordination in these matters shifts 

towards the responsible Faculty committees. 

The changes that are proposed 

are function-oriented, which means that 

they are meant to improve efficiency 

and flexibility in the carrying out of 

The proposed faculty structure is as follows: 

various Faculty functions. In the sphere 

of tuition, for example, the focus is 

primarily on the design and delivery of 

specific programmes, and not on departmental 

involvement in courses, 

although the actual teaching of individual 

modules is still the responsibility of 

specific departments. The existing committee 

structures of the Faculty are 

rationalised and adapted to accommodate 

the centralisation of certain functions. 

All permanent committees are 

made up of departmental representatives. 

Existing interests and ``comfortzone'' 

considerations are protected by 

way of a number of guarantees underlying 

the changes. 1 The most important 

guarantee is that representation on all 

permanent Faculty committees (and 

thus on the Executive Committee of 

Faculty (ECF)) is primarily departmental 

in nature. 

Dean 2 

+ 

Executive Committee of Faculty 

(heads of department 3 plus chairs/persons of permanent committees 4 ) 

o 

o 

departments 5 > permanent committees 6 


1 See the separate section on guarantees below. 

2 The position of vice-dean should be reassessed. 

3 Existing departments, or a smaller number of combined departments. 

4 See the next section for the proposal on committees. 

5 See note 3 above. 

6 See note 4 above. 

77

Permanent Faculty committees are the 

following: Tuition (LLB); 7 Tuition (Postgraduate); 

8 Research; 9 Human Resources; 

10 Finances; 11 Nonsubsidised 

Programmes; 12 and Academic Citizenship. 

1314 The chairpersons of the Tuition 

Committee (LLB), Tuition 

Committee (Postgraduate), Research 

Committee and Non-subsidised Programmes 

Committee are members of 

the ECF. The permanent Faculty committees 

basically consist of departmental 

representatives, with additional members 

on the basis of special expertise as 

and when necessary (particularly Human 

Resources and Finances). 

The powers of departments and heads 

of department are determined by the 

following three main principles: (1) In 

principle, current powers and decisionmaking 

remain as they are, except for 

changes necessitated by (2) and (3). (2) 

In matters in which functional changes 

for the sake of greater efficiency and 

flexibility demand it, decisions are 

taken in the relevant committee, with 

the input of departmental representatives, 

and not by departments or heads 

of department on their own. All committee 

decisions must be considered and 

ratified by the ECF, and all ECF decisions 

by the Faculty Board, as at present. 

(3) ``Housekeeping'' functions (leave, 

division and allocation of work in a 

subject or module group, secretarial 

work and typing, deployment of student 

assistants, allocation and use of compu- 


7 This is an existing committee, to be chaired by a programme coordinator (presently Prof E Schoeman) 

responsible for tuition policy and implementation and coordination in all aspects of the LLB programme. 

It could be organised along the lines of permanent portfolios, eg examinations, SAQA, semesterisation 

issues, study materials, etc. 

8 This is a new committee, to be chaired by a programme coordinator (presently Prof M Havenga) 

responsible for tuition policy and implementation and coordination in all aspects of the postgraduate 

programme/s (LLM coursework, LLM dissertation, LLD). 

9 This is an existing committee (presently chaired by Prof CW van Wyk), responsible for research policy 

and implementation and coordination in all research matters, eg output, subsidy matters, bursaries and 

grants, perhaps training in research and initiation and/or coordination of larger Faculty projects, outside 

funding, etc. 

10 This is a new committee (chaired by the Dean and consisting of the new ECF, as well as representatives of 

APSA (trade union) and the JAAC (Joint Affirmative Action Committee); in the case of administrative 

matters, a representative of SAPTU (trade union) is co-opted), responsible for policy and implementation 

of all human-resource functions, eg appointments, promotions, affirmative action, quality control, use 

and allocation of personnel points, the Dean's Fund, etc. 

11 This is a new committee, currently dealing with the Attorney's Fidelity Fund only, chaired by the Dean 

and consisting of the new ECF and the secretary of the Fidelity Fund. Later it will be responsible for policy 

and implementation in all financial matters that affect the whole Faculty ± also outside funding and 

sponsors. 

12 This is a new committee (presently chaired by Prof C Visser) responsible for policy and implementation 

and coordination of all aspects of nondegree programmes, eg existing certificate and other courses, as 

well as any new programmes that are not subsidised and bring in outside funding. 

13 This is a new committee responsible for policy and implementation and coordination of all ``communityservice'' 

programmes. The committee consists of the Faculty's representative on the central Academic 

Citizenship Committee (presently Prof P Havenga), as well as the chairperson (or director) of the Legal 

Aid Clinic, Street Law Committee and Gender Research Unit in Law. Later other staff members/ 

departments, particularly those with projects falling outside these three areas, should be asked to join the 

committee on a voluntary basis. The chairperson is co-opted to the ECF when academic-citizenship 

matters are dealt with. The name of the committee was referred to the committee for recommendation to 

the ECF and the Faculty Board. 

14 Although the final proposal made provision for an Academic Support Committee consisting of the 

present Library, Marketing and IT Committees, it was decided that this committee should not be 

established and that the status quo of the Library, Marketing and IT Committees be retained. The 

chairperson of the relevant committee will be co-opted to the ECF when library, marketing or IT matters 

are dealt with. 

78

ters, stationary, et cetera) remain a 

departmental matter. 

All members of the ECF (excluding 

the Dean) are treated on the same basis 

as far as remuneration is concerned ± 

that is, they have a choice between (1) 

no extra remuneration, but consideration 

as far as the allocation of departmental 

tuition tasks are concerned; and 

(2) extra remuneration, but continued 

responsibility for normal tuition tasks in 

the department. At least the chairperson 

of the Tuition Committee (LLB) should 

receive dedicated secretarial support. 

The Faculty should also consider appointing 

a permanent, dedicated administrative 

non-secretarial officer to 

centralise and take over as many `òffice-management'' 

functions from the 

Dean and from Faculty members as 

possible. Flexibility in the appointment 

(eg, in two different departments or in 

the Faculty as a whole), redeployment 

and allocation of staff in various departments 

should be promoted and facilitated 

by the Human Resources 

Committee, on the initiative of and with 

full participation and input from the 

relevant staff members and heads of 

department. If necessary and possible, 

available personnel points should be 

used for this purpose. 

The following individual guarantees are 

given: 15 (1) Nobody will be forced to 

move from one department to another or 

to assume an ECF function against his or 

her will. Redeployment will not take 

place without the full participation of 

and input from affected staff members 

and heads of department. (2) Existing 

rights with regard to special departmental 

funds or other privileges created and 

allocated in a department (and administration 

of claims to those funds or 

privileges) remain as they are. (3) 

Secretarial staff members remain where 

they are at present, except if departments 

decide to combine and to redeploy 

staff members for greater efficiency. 

The revised final proposal will be 

implemented with immediate effect if 

possible and feasible, 16 and was sent to 

Professors AP Melck (Principal), JA 

DoÈ ckel (Vice Principal ± Research and 

Planning), APSA and SAPTU for their 

notification. 

Die Fakulteit neem afskeid van vyf 

senior kollegas 

Aan die einde van September 1999 en 

gedurende Februarie 2000 het die Fakulteit 

afskeid geneem van vyf senior, 

gerespekteerde en hoogs gewaardeerde 

kollegas, van wie vier die vroeeÈ aftreepakket 

van die Universiteit aanvaar het 

(proff J Church, DSP CronjeÂ , N Wiechers 

en A van Blerk), terwyl professor A van 

der Walt 'n aanstelling as hoogleraar by 

die Universiteit van Stellenbosch aanvaar 

het. Dit laat my dink aan amper 30 

jaar gelede toe ek professors CronjeÂ en 

Church die eerste keer ontmoet het, 

naamlik in 1972, toe ek van Kanada af 

teruggekeer het na voltooiing van 'n 

LLM-graad aan die Universiteit van 

McGill en sowel professor CronjeÂ , so 

pas uit Duitsland na 'n loopbaan as 

diplomaat, as professor Church, wat 

vanaf 'n sekondeÃ re skoolpos na Unisa 

oorgeslaan het, as nuwelinge in die 

Department Privaatreg ontmoet het. 

Professors Wiechers, Van Blerk en Van 

der Walt het 'n paar jaar later by die 

Fakulteit aangesluit. Ek wil ons grootste 

waardering uitspreek vir hulle bydraes 

tot die Fakulteit oor baie jare, hetsy in 

die vorm van onderrig, navorsing, gemeenskapsdiens 

of administrasie, en 


15 These guarantees were referred for reformulation to Profs H Booysen and A Thomashausen and Mr C 

Garbers for recommendation to the ECF and the Faculty Board. 

16 The new extended ECF had its first meeting on 8 February 2000. 

79

wens hulle alles van die beste en 

mooiste vir die toekoms toe. Tydens 

departmentele afskeidsfunksies het die 

onderskeie departementshoofde, professor 

R van den Bergh van die Departement 

Jurisprudensie, en professor JM 

Potgieter van die Departement Privaatreg, 

hulle soos volg oor hulle kollegas 

uitgespreek: 

Adrienne Elvira van Blerk 

Professor Van Blerk joined the University 

and the Department of Jurisprudence 

in 1975. She obtained her LLM at 

the University of Natal and her LLD at 

the University of South Africa. She 

lectured mainly in Legal Philosophy 

and Law of Conflicts. Adrienne published 

widely: as co-author in legal 

books, as individual author in accredited 

legal journals, and also in other legal 

journals. She has published two books 

on her subject, and the second, Jurisprudence: 

an introduction, which is presently 

prescribed at five South African universities, 

can indeed be called a ``bestseller''. 

The first edition sold out within 

a year. In view of the popularity of the 

first revised edition, which was published 

soon afterwards, she is currently 

preparing the second revised edition. 

She has won a number of academic 

prizes and obtained University bursaries 

which enabled her to do research in the 

United Kingdom and the United States 

of America in 1979, 1993 and 1999. 

She delivered a number of papers at 

national and international conferences 

and served on a number of committees 

in the University, such as the Research 

Committee and the Editorial Committee 

of Codicillus (of which she was a very 

meticulous editor from 1977 to 1979, 

and again in 1995). She was also a 

member of the Centre for Indigenous 

Law (of which she was secretary from 

1976 to 1984), and of the South African 

Society of Legal Historians. She is, at 

present, still acting as promoter for 

seven doctoral students. Professor Van 

Blerk has always been the quintessence 

of a true academic in the classical and 

the traditional sense of the word: she 

very much kept to her office, loved her 

work, taught and did research and 

although she always created the impression 

of an absent-minded professor, she 

knew exactly what she wished to do and 

how ± as long as it concerned her 

teaching activities! Her students regarded 

her as a very good and sympathetic 

teacher, and members of the 

Department also very often consulted 

her about matters of research and the 

correct usage of English. She served as a 

role model for the junior academics and 

I think that if she were to be judged 

(quoting her first book) as professor and 

academic, she would be judged very 

favourably among the members of her 

old department. 

80

Joan Church 

Professor Church is a graduate of the 

University of the Witwatersrand and of 

the University of South Africa. She 

joined the University in 1972 as an 

assistant in the Department of Private 

Law. She moved to the Department of 

Jurisprudence especially to assist with 

the Introduction to the Theory of Law 

course and has since then been actively 

involved in the presentation and development 

of this course. In fact, even 

now, as a retired person, she is still 

under contract to write a study guide for 

the new course that will be introduced 

next year. She has also taught Comparative 

Law, and is currently writing a book 

on this topic together with Professors 

Neville Botha and Christian Schulze. 

She furthermore initiated a new course 

in Street Law, which was introduced 

only this year. Professor Church is very 

much a community person. When the 

Department, on the recommendation of 

Professor Ben Stoop, decided to present a 

certificate course and to create a Unit for 

Basic Legal Education with the specific 

purpose of community service on a 

departmental scale, Professor Church's 

encouragement and drive kept us going 

through all the obstacles and pitfalls, and 

she served as head of the Unit until her 

retirement. Her special fields of interest 

are comparative family law, African 

customary law and legal education. She 

has published (in accredited and in other 

legal journals) and lectured widely on 

these subjects, both nationally and internationally. 

She served on a large number 

of Faculty and other committees in the 

University (among which the Faculty 

Tuition Committee, the editorial committees 

of Codicillus and Progressio, and 

Senex). She was also a member of 

various centres (inter alia of the Centre 

for Indigenous Law, the Unisa Legal Aid 

Clinic, the Centre for Women's Studies 

and the Centre for Legal Historical 

Research) and she has been an active 

member of the Southern African Society 

of Legal Historians and the Society of 

University Teachers of Law (of which she 

was the first female president, namely 

from 1992 to 1994). In 1984, she was 

appointed ad hoc member of the South 

African Law Commission for the investigation 

into black marriages and customary 

unions and served on the SALC's 

Project Committee on the law of persons. 

From 1987 to 1994, she was a member 

of the Transvaal Education Council and 

also served on the main committee of the 

Human Sciences Research Council's 

Committee for Marriage and Family Life. 

From 1989 to 1995, she served on the 

South African Certification Council. 

ShebecameheadoftheDepartmentin 

1994, and to the members of the Department 

she was a capable, helpful, resourceful, 

caring and compassionate HOD. 

81

She was indeed regarded as the most 

considerate boss anyone could have had. 

She was always very observant, and her 

tokens of consideration were very much 

appreciated. This stretched far beyond the 

Department, because, as said, community 

involvement has always been a very 

important factor in her life. This can also 

be seen very clearly from her curriculum 

vitae and the large number of research 

projects on the improvement of human 

circumstances she has been involved in. 

In this regard, she has truly set an 

admirable example of community participation 

to all of us. 

DanieÈ l Sarel Pentz CronjeÂ 

Professor CronjeÂ het die diens van die 

Universiteit aan die einde van September 

1999 met vervroegde aftrede verlaat. Hy 

het in 1972 as akademiese assistent by die 

Departement Privaatreg aangesluit na 'n 

loopbaan in die diplomatieke diens. Sy 

ongelooflike werkywer het hom binne vyf 

jaar drie regsgrade en 'n professoraat 

besorg: 'n LLB van Unisa in 1973, 'n 

LLM van RAU in 1974, en 'n LLD, ook 

van RAU, in 1977, terwyl hy in dieselfde 

tyd van assistent tot volprofessor in die 

Departement gevorder het. Professor CronjeÂ 

was dosent in Erfreg en groephoof vir 

dieÂ vak. Hy is veral bekend vir sy 

verskeidenheid standaardhandboeke oor 

Erfreg, Familiereg en Personereg wat nog 

steeds by verskeie universiteite voorgeskryf 

word. Hy word onthou vir sy pynlike 

nougesetheid, noukeurigheid en stiptelikheid. 

Hy was in 'n sekere sin 'n visioneÃ r 

wat veranderinge in die Universiteit jare 

vooruitgesien het. Hy het sy standpunte 

altyd reguit en onbevrees gestel, gewoonlik 

met 'n unieke gevatheid, en deurentyd 

die geneentheid van kollegas behou. 

Professor CronjeÂ het 'n besondere slag 

met studente gehad, en was 'n gewilde 

dosent tydens groepbesoeke. Op die breeÈ r 

universiteitsterrein word hy veral geeÈ er vir 

sy jarelange voorsitterskap van die Publikasiekomitee. 

Sy bekwaamheid as voorsitter 

van vergaderings was alom bekend. 

Professor CronjeÂ is getroud met professor 

Marita CronjeÂ van Unisa se Departement 

Rekeningkunde. Hulle gaan hulle uiteindelik 

in Stilbaai vestig. 

Professor Wiechers het in 1980 by die 

Departement Privaatreg aangesluit nadat 

hy aan die Universiteit van Pretoria 

verbonde was. Hy was dosent in en 

groepleier van onder meer Familie- en 

Personereg en praktiese kursusse in die 

Departement, maar veral ook 'n kenner 

van die Erfreg. Hy is outeur van verskeie 

bekende boeke oor testamente, erfreg en 

boedelbereddering. Hy het verskeie kere 

as hoof van die Departement Privaatreg 

waargeneem. Professor Wiechers is 

landwyd bekend as die langsdienende 

dosent in die afdeling Verdere Regsopleiding 

van die Prokureursorde, waar 

hy veral Boedelbereddering doseer. Hy is 

nog steeds as dosent betrokke by die 

gewilde Sertifikaat in Praktiese Boedelpraktyk 

wat deur die Regsgenootskap in 

samewerking met die Departement Privaatreg 

aangebied word. Professor 

82

Nicolas Johannes Wiechers 

Wiechers het in verskeie Fakulteitskomitees 

gedien, en sal veral onthou word 

vir sy waardevolle bydrae as voorsitter 

van die Beheerkomitee van Unisa se 

Regshulpsentrum. Die Departement verloor 

'n rustige, hulpvaardige en vrygewige 

kollega. Hy was die eerste om hulp 

aan te bied as daar 'n krisis ± byvoorbeeld 

met die nasien van eksamenskrifte 

± ontstaan het, of om waar te neem vir 

'n kollega wat met verlof of siek was. As 

voorsitter van die departementele Sosiale 

Komitee het hy 'n groot bydrae 

gelewer tot die positiewe gees in die 

Departement. Professor Wiechers is met 

professor Bettie Wiechers van Unisa se 

Fakulteit Opvoedkunde getroud. Hy sal 

hom nou in groter mate op boedelbereddering 

toeleÃ . 

Professor Van der Walt het 'n aanbod 

van die Universiteit van Stellenbosch 

aanvaar en is vanaf 1 Maart as professor 

aangestel in die pos van die bekende 

professor AndreÂ Rabie, ook 'n oudkollega, 

wat onlangs afgetree het. Professor 

Van der Walt het die grade BIuris, 

Honneurs in Filosofie, LLB en LLD aan 

die Potchefstroomse Universiteit vir 

CHO ± waaraan hy vroeeÈ r verbonde 

was ± behaal, en 'n LLM aan Wits. Hy 

het in 1987 by Unisa aangesluit. In die 

13 jaar wat hy as professor en dosent in 

die Sakereg aan ons Fakulteit verbonde 

was, het hy besondere hoogtes bereik. 

Hy was outeur of mede-outeur van en 

bydraer tot meer as 20 boeke oor eiendomsreg, 

regsgeskiedenis en navorsingsmetodologie. 

Hy het meer as 100 

artikels en ander bydraes in regstydskrifte 

gepubliseer, en meer as 50 

bydraes op nasionale en internasionale 

konferensies gelewer. Hy het in regeringskommissies 

gedien oor die invloed 

van die nuwe Grondwet op eiendomsreg, 

het as gasdosent by verskeie plaaslike 

en buitelandse universiteite opgetree, 

en was mede-organiseerder van 'n 

internasionale konferensie oor eiendomsreg 

in Nederland. Met professor 

Van der Walt se vertrek verloor die 

Fakulteit 'n uitnemende akademikus 

Andre Johannes van der Walt 

83

van internasionale faam. Ons sal hom 

veral onthou vir sy passie vir kwaliteitnavorsing, 

sy onwrikbare aandrang op 

gehalte, sy liefde vir sy vak, en die tyd 

en moeite wat hy bestee het om studiemateriaal 

van die hoogste standaard te 

ontwikkel. Die Fakulteit wens professor 

Van der Walt en sy gade, dr Christa van 

der Walt, wat Engels aan Vista Universiteit 

doseer het, alles van die beste toe 

met die voortsetting van hulle loopbane 

in die Wynland. 

Students: international moot court 

participation 

The Faculty was invited to participate in 

the IVth Afro-Asian Moot Court Competition 

held during the first week of 

August 1999, as well as in the Vth All- 

African Human Rights Moot Court 

Competition from 28 September to 4 

October 1999. Participation in the latter 

competition would not have taken place 

without the generous grant from the 

Attorneys' Fidelity Fund, and for this 

the Faculty wishes to express its appreciation. 

We also wish to thank Roger 

Evans of the Department of Mercantile 

Law, who organised our participation in 

the two events. Without his huge contribution 

and enthusiasm this would not 

have been possible. Mr Evans reports as 

follows: 

IVth Afro-Asian Moot Court Competition 

The Competition was hosted by the 

National Law School, India University, 

in the city of Bangalore in India. Unisa 

was represented by the following three 

students: Stephen Malebati, Hendrik 

Visser and Mxolisi Macdondolo, and 

the Faculty representative was Roger 

Evans. There had been keen interest in 

the Competition, and finalists were 

selected after various interviews with 

all the applicants. 

The problem to be argued at the 

Competition was based on the facts of 

the industrial accident at Bhopal in 

India (the Union Carbide case) and the 

Chernobyl disaster in Russia. Preparation 

for the Competition therefore required 

an in-depth study and research of 

issues pertaining to, inter alia, international 

law and environmental law. The 

problem proved to be very complicated 

in nature and required many hours of 

dedicated research by the students under 

the expert guidance of Professor Neville 

Botha of the Department of Constitutional 

and Public International Law. The 

team was most grateful to Professor 

Botha for the guidance he gave them as 

far as international law was concerned. 

The students had less than a month to 

prepare for the Competition, and their 

25 pages of thoroughly researched heads 

of argument had to be dispatched to the 

Competition organisers in Bangalore 

seven days before the commencement 

of the Competition. Apart from the 

technicalities of applying for funding, 

booking flights, applying for passports 

and visas, arranging for inoculation 

against diseases and collecting emergency 

medical provisions, all the participants 

spent many long hours in 

preparing for this event. 

After a long flight, the team arrived at 

Mumbai International Airport just before 

midnight, and the rest of the 

evening was spent at Mumbai's domestic 

airport, waiting for the early-morning 

flight to Bangalore. On arrival, the 

exhausted team was welcomed by a 

group of most hospitable students. The 

first culture shock was experienced 

during a very chaotic and nerve-racking 

drive from the airport to the place of 

accommodation. The roads were devoid 

of most traffic signs or white traffic 

lines. There appeared to be only one rule 

of the road, namely: ``Get to your 

destination as fast as possible by any 

means without bumping into another 

vehicle, animal or person, and hoot as 

much as you can.'' Cows everywhere 

84

enjoyed having the right of way. However, 

the game of cricket soon created a 

special bond between our team and the 

hosts. Many of them swore that they 

had shed tears when South Africa lost 

the World Cup! 

Although approximately 15 teams 

had been expected to enter the Competition, 

only six teams eventually participated 

± namely two from India, two 

from Malaysia, one from Hong Kong 

and one from Unisa. The Competition 

was officially opened at a pleasant 

dinner party where traditional Indian 

food was served and students were 

entertained by traditional and not so 

traditional dancing, as well as squadrons 

of ferocious mosquitos. At the 

Competition, the teams were divided 

into two pools, and they argued with 

each other during the next three days. 

Court sessions were presided over by 

academics from the host university as 

well as practising lawyers, while the 

final round was judged by Supreme 

Court judges and an eminent academic. 

Arguments had to be presented in 

English, but since there were so many 

nationalities competing with one another 

(to many of whom English is not 

their first language) communication 

sometimes became somewhat amusing 

and very innovative in nature. Also, 

many Indians have a habit of indicating 

an affirmative response to a question by 

means of a peculiar nod of the head, that 

our students would interpret as a negative 

response. In the courts this often 

resulted in hilarious confusion and a 

debate between student participant and 

judge. The speakers in our team, Stephen 

and Hendrik, battled fiercely, 

sometimes having prolonged arguments 

with a particularly difficult judge. Mxolisi 

was the researcher and provided the 

speakers with whatever assistance they 

required. 

By the end of the arguments, the 

teams of the Islamic University of 

Malaysia and the National Law School 

of India emerged as finalists, with the 

Indian team finally winning the Competition. 

Although our team did not 

win, the competition proved to be an 

invaluable experience. In preparing for 

this Competition, the students learnt 

how to analyse a complicated problem, 

to complete this analysis by means of 

high-level research, and finally to present 

a practical result. Valuable insight 

into the rigorous requirements of their 

future profession was gained by the 

students. The interaction among students 

from different parts of the world 

and their discussions of pressing legal 

and social issues were also important. 

New friends were made, and possibly 

also contacts with regard to a future 

legal career. 

After returning from Bangalore, the 

team spent a leisurely day of sightseeing 

and shopping in Mumbai before returning 

to Johannesburg and their preparation 

for the examinations. All agreed 

that the Competition had been a most 

rewarding and worthwhile experience. 

Vth All-African Human Rights Moot Court 

Competition 

This Competition took place at the 

UniversiteÂ de Cocody, Ivory Coast. It is 

a well-established and important competition 

with competitors from more 

than 60 universities from the entire 

African continent. The two representatives 

from our Faculty were Abram 

Malapile and Blessing Ngomezulu, and 

they were also accompanied by Roger 

Evans. 

The problem for discussion at the 

Competition concerned the fictitious 

African countries of Armazia and Batango 

and the citizens of these countries. 

The relevant legal issues, however, 

were not fictitious in nature, and concerned 

real and important questions 

about Africa's current socio-political 

85

Blessing Ngomezulu with students from Malawi and Nigeria 

problems. For example, the four main 

issues which had to be argued by the 

students were the denial of a refugee's 

right to legal representation being a 

violation of the African Charter on 

Human and People's Rights, the criminal 

code of a country which proscribes 

homosexuality being in conflict with the 

African Charter, mass expulsion of 

refugees being a violation of the Organisation 

for African Unity Convention, 

and the socio-economic implications of 

a state's budget. Students were required 

to argue for both the applicant and the 

respondent in this case. Abram and 

Blessing therefore had to acquire a 

thorough knowledge of the facts and 

the law relating to amongst others, 

international law, refugee law, constitutional 

law and human-rights issues. In 

this respect, the students were guided by 

the expert advice of Professor Neville 

Botha and Dr Henk Botha of the Department 

of Constitutional and Public international 

Law. 

After weeks of research and many 

hours spent preparing the heads of 

argument for the case, the team finally 

boarded the chartered flight from Johannesburg 

to Abidjan together with all 

the other participating teams from 

Southern Africa. At the Competition, 

each team had to present its arguments 

in four different courts before four 

different panels of judges, twice as 

respondent and twice as applicant. 

Possible opponents of the Unisa team 

included the Nairobi or Moi University 

from Kenya, the University of Zimbabwe, 

a number of Nigerian universities, 

the Universities of Mauritius, 

Ghana, Venda, Liberia, Pretoria, Botswana, 

Malawi, the Orange Free State 

and Wits University. Each team was 

given a code number in order to disguise 

its identity, and lots were drawn to 

determine who would argue against 

whom. 

After each court appearance, the 

judges awarded a mark to each team, 

based on the presentation abilities of 

each oralist as well as the team's heads 

of argument. The Unisa team did very 

well by obtaining a total average of 67 

86

percent. The court sessions proved to be 

rather exhausting for the students and 

judges, and the attendance of a day of 

lectures by eminent international human-rights 

experts and a lunch at the 

seaside provided some relief. 

Perhaps the importance of this Competition 

lies not in the possibility of 

winning, but rather, first, in the opportunity 

for student-team members to gain 

practical experience in presenting a 

complicated court case in an actual court 

situation, and in anticipating and responding 

to questions from the judges. 

Consequently, the outcome of this is the 

application of the knowledge that was 

built up during the previous weeks of 

hard work and research. Secondly, an 

early awareness of the importance of an 

African human-rights culture is cultivated 

among students of the African 

continent, many of whom will undoubtedly 

be its future leaders. Thirdly, an 

important forum is provided by the 

Competition, where African students 

can meet to exchange ideas and experiences 

in an African context. 

The VIth All-African Human Rights 

Moot Court Competition will be held in 

Accra, Ghana, in 2000. Applications for 

this and other moot courts will be 

advertised as widely as possible, and 

all Unisa law students are encouraged to 

consider participating. Students should 

however realise that mooting is not 

merely an impromptu debate, but rather 

a most demanding and time-consuming 

exercise that requires a tremendous 

amount of reading and research. According 

to Abram and Blessing, however, 

the knowledge and experience 

gained was well worth this sacrifice. 

Fakulteitsverteenwoordiging in die 

Senaat 

Soos in die vorige uitgawe van Codicillus 

(108) vermeld, het die Regsfakulteit 20 

Senaatslede waarvan 10 net deur Fakulteitslede 

en 10 deur die akademiese 

personeel van die hele Universiteit verkies 

moet word. Die verkiesing van 

laasgenoemde 10 lede is intussen ook 

afgehandel. Hulle is professors R van 

den Bergh, G Carpenter, SJ Scott, CW 

van Wyk, JP Swanepoel, mnr PD Brink, 

me M Jansen, me M Mokotong en me I 

Moodley. Professor M Havenga het in 

die plek van die afgetrede professor J 

Church Senaatslid geword. Ons wens al 

hierdie kollegas van harte geluk, en 

wens hulle veral sterkte met die belangrike 

taak toe. Ten einde duidelikheid oor 

die verhouding tussen die verkose Senaatslede 

en die Fakulteit te verkry, het 

die Fakulteitsraad besluit dat die beginsel 

van verantwoordbaarheid van bedoelde 

lede teenoor die Fakulteit 

aanvaar word, dat 'n verslag van dieÂ 

lede 'n vaste item op elke agenda van 

die Fakulteitsraad word, en dat die 

Senaat versoek word om die agenda en 

verslag van elke Senaatsvergadering via 

e-pos aan elke Unisa personeellid beskikbaar 

te stel. 

Unisa Street Law Programme 

Ms MA Mtembu, who took over the post 

of Street Law Officer in an acting capacity 

after the resignation of Mr William 

Mphilo in the second half of last year, 

reported that 60 law students were 

trained as Street Law facilitators in 

1999 by Lesley Frescura of Lawyers for 

Human Rights. These ``Streeters'' in turn 

conducted community workshops in 11 

different institutions, in which they 

preached human rights, democracy, the 

Constitution and the Bill of Rights. 

The Street Law certificate ceremony 

was held at the Unisa main campus on 

27 August 1999, and 49 ``Streeters'' 

were awarded certificates. Professor 

J Faris, chairperson of the Street Law 

Committee, welcomed everyone and also 

expressed his sincere gratitude to Mr 

Mphilo for his immense contribution to 

87

the Street Law office and programme. 

The keynote address was presented by 

Advocate Barbara Hechter in her capacity 

as the Family Advocate. The guests of 

honour were Prof DL Mosoma (acting 

Registrar Operations), Lesley Frescura, 

the Dean and Mr Mphilo. 

Prof J Neethling, adv B Hechter, Ms M Mthembu 

and Prof J Faris at the Street Law certificate 

ceremony 

The activities for 2000 are in progress. 

Interviews for Street Law participants 

were held on 11 and 17 March. This was 

followed, on 23 March, by the training 

workshop, which was conducted by 

Mala Naidoo of Transformation Education 

Africa. For the first semester, Ms 

Mthembu has already made arrangements 

with the following institutions for 

conducting Street Law workshops: Reitumetse 

High School, Dr BW Vilakazi 

High School, Leeukop Prison and Pretoria 

West Engineering College. 

Student affairs: decisions of the 

Faculty Board and Senate 

The following decisions of the Faculty 

Board (10 September), approved by 

Senate on 21 October 1999, are of 

importance to students: 

LLM and LLD oral examinations 

After thorough discussions in the various 

departments and in the Faculty 

Tuition Committee the ECF resolved 

that, in principle, prospective LLM(A) 

and LLD students should do an oral 

examination in order to determine their 

ability to undertake advanced research, 

before they commence writing their 

dissertation/thesis. Exemption (full or 

partial) from the oral examination may 

be granted by the ECF, on recommendation 

of the supervisor/promoter, on one 

or a combination of two or more of the 

following factors: (1) a proper research 

proposal; (2) a research paper or report; 

(3) a Master's degree in law; (4) prior 

studies (other than (3)); and (5) any 

other relevant factor. On recommendation 

of the supervisor/promoter, the ECF 

may approve that the oral examination 

be taken (or a colloquy be held) after 

completion of the dissertation/thesis. 

LLB short dissertation 

In order to enable students to improve 

their research skills, it was decided to reintroduce 

the short dissertation as an 

elective module for the four-year LLB 

degree. A tutorial letter providing research 

guidance in this regard will be 

sent to all students involved. 

New modules (LLB degree) 

First, Sentencing (``Straftoemeting'') 

will be introduced from 2001 as an 

elective LLB module. The reason for this 

is that sentencing is a very important 

and topical field of law that is relevant 

to legal practice every time an offender 

has been convicted, and this happens in 

almost 1,5 million cases every year. The 

module covers the following topics: 

88

introduction; penalty clauses; pre-sentence 

procedures; the sentence discretion; 

the general principles of sentencing; 

imprisonment; fines; correctional 

supervision; sentencing young offenders; 

suspended sentences; other sentencing 

options; and sentencing in 

indigenous law. Secondly, the new 

constitutional dispensation has transformed 

the South African education 

system and has given educators additional 

duties and responsibilities, inter 

alia, to understand and practise the 

democratic values and principles of the 

Constitution in the school environment. 

Moreover, lawyers and legal practitioners 

in both the public and the private 

sector have become increasingly aware 

of the importance of education law and 

the increase in education litigation in 

recent years. Against this background, it 

was decided to introduce Education Law 

(`Ònderwysreg'') as an elective in the 

LLB degree. This module will cover the 

following general themes: education in 

the context of a new South African 

constitutional system; human rights in 

education; the legal framework of the 

education system; the division of 

powers in education; the provincial 

school system; governing a school; the 

rights and duties of educators, learners 

and parents; and case-law studies in 

education. The module will initially be 

developed and taught in the Departments 

of Constitutional and Public 

International Law and Private Law. It 

should also be mentioned that Education 

Law (ONB454±J/OVO441±J), 

taught until 1999 in the Faculty of 

Education as part of the BEd programme 

in Education Management, was recently 

transferred to the Law Faculty, in which 

it will be taught as a service module 

from 2000. The administration, tuition 

and development of this module will be 

supervised by an interfaculty committee 

that will report to their respective 

faculties on an annual basis. The pilot 

committee consists of four members ± 

two from each faculty. The representatives 

of the Law Faculty are Professors 

Johan Potgieter (Department of Private 

Law) and Elmene Bray (Department of 

Constitutional and Public International 

Law). 

LLM (B Curriculum) 

A new LLM paper, ``Drafting of commercial 

contracts'', was introduced because 

of the enormous number of 

enquiries from prospective students regarding 

such a paper the past couple of 

years. The paper will deal with (1) precontractual 

negotiations, preliminary 

and conditional agreements, heads of 

agreement and letters of intent; (2) the 

contract of sale, which will deal with 

both the common-law principles and the 

consumer legislation pertaining to the 

Usury Act, the Credit Agreements Act, 

the Alienation of Land Act and Lay-By 

Agreements (practical drafting will be 

integrated into each sub-section); (3) the 

contract of lease of property and services 

(mandate) which will cover both the 

common-law principles and the applicable 

legislation pertaining to the Rent 

Control Act (proposed new Act) and the 

Residential Landlord and Tenant Act 

(practical drafting will here also be 

integrated into each sub-section). The 

syllabi of quite a number of LLM papers 

were also substantially revised: 

MADMLW±M, MPINLW±Y, 

MSINLW±J, MHUMLW±8, MCSTLW± 

R; a new caput (``The exclusionary rule'' 

± ``Die uitsluitingsreeÈ l'') was introduced 

to replace one of the current six capita 

for MEVDLW±U, namely ``Corroboration 

and the cautionary rules''; and a 

new caput (``The sentencing decision'' ± 

``Die vonnisbeslissing''), was added to 

the existing five capita for MCRPLW±9. 

Semesterisation 

Students should note that as a result of 

89

practical difficulties it was decided to 

convert Tax Law (LML404±R), one of 

the optional modules for the LLB degree, 

from a semester to a year module. 

Fakulteitsopening: 2000 

Die Fakulteit het op 3 Maart vir sy 

amptelike opening vir 2000 in die 

Senaatsaal van die Universiteit byeengekom. 

Die hoogtepunt van die funksie 

was seer sekerlik die toespraak van me 

Cheryl Gillwald, Adjunkminister van 

Justisie en Staatkundige Ontwikkeling 

± die volle toespraak verskyn elders in 

hierdie uitgawe. Die Rektor, professor 

Antony Melck, het die funksie amptelik 

geopen en het die adjunkminister verwelkom. 

Ander gaste wat die funksie 

bygewoon het, sluit in ander lede van 

die topbestuur van Unisa (proff A van 

Aswegen en T Msimang), dekane van 

ander Fakulteite, lede van ons Biblioteek 

en van die Departemente Redaksie, 

Voorgraadse en Nagraadse Studentesake, 

en studente van die Unisa Law 

Students' Association (langs hierdie 

weg wil die Fakulteit sy bande met 

regstudente verstewig), lede van die pers 

en ons Departement van Korporatiewe 

Kommunikasie en Openbare Betrekkinge, 

en ander lede van die Unisa gemeenskap. 

Twee buitelede van die Fakulteitsraad 

het ook hulle opwagting gemaak: 

me C van der Riet, hoof van Justisie 

Kollege, en mnr N Swart, direkteur van 

die Skool vir Regspraktyk op ons Sunnyside 

kampus. Hulle belangstelling in 

die Fakulteit word baie waardeer. 

By die aanvang van die tweede deel 

van die funksie het ek die volgende paar 

gedagtes met die Fakulteit gedeel: 

Two months have passed and the rest 

of 2000 is urgently awaiting us. 

Apart from normal teaching and 

research activities, Faculty members 

will have to spend some time on the 

Prof A Melck, Adjunk-Minister Cheryl Gillwald, Prof J Neethling en Prof MC MareÂ by die Fakulteitsopening 

90

implementation of the semester system. 

Semesterisation is a major step 

for the Faculty in the direction of 

open distance learning in which 

students are as far as possible enabled 

to conduct their studies according 

to their own personal circumstances, 

as far as place, pace and time 

are concerned. However, because the 

preparation time for examinations 

has now been halved, students will 

have to commence their studies on 

day one! Also, the time for students 

to do research or for the staff to do 

quality teaching has also been 

halved. Whether this is to the advantage 

of students in the long run, 

will have to be seen. The Faculty 

Undergraduate Tuition Committee 

has the task of facilitating, co-ordinating 

and implementing the process. 

Secondly, 2000 has been 

declared ``Student Support Year'' at 

Unisa. Members of the Faculty, even 

more than in the past, will have to 

become client-oriented so that we can 

really provide the best services to our 

students. In this respect, I wish to 

express my sincere gratitude to all 

members of the Faculty who rendered 

assistance to students during 

the registration period. One person 

should be singled out here, namely 

Professor Louis Vorster, whose dedication 

and huge input, as in the past, 

did not go unnoticed. Thank you very 

much. Thirdly, SAQA concepts such 

as `ÒBE'' and ``RPL'' (Outcomes 

Based Education and Recognition of 

Prior Learning for the illiterate) will 

have to be attended to, and will have 

to be given concrete shape in our 

tuition methods and exemptions 

from strict compliance with the prescribed 

curricula for our qualifications. 

For the purpose of RPL, we 

shall also have to describe all our LLB 

modules and LLM papers in the form 

required by SAQA before the end of 

the year. Lastly, the preparation for 

registration at SAQA of our postgraduate 

and non-subsidised programmes 

will have to be finalised 

soon. In this respect, I again wish to 

thank Professor Elsabe Schoeman on 

behalf of the Faculty for the excellent 

and tremendous work she has done, 

and is still doing, in this respect, 

especially with regard to our undergraduate 

qualifications. For the rest, 

as I said in the past, carpe diem ± seize 

every opportunity that each day 

offers, and I am sure that we shall 

secure our status as one of the best 

law faculties in South Africa. 

Hierna is nuwe personeellede aan die 

Fakulteit voorgestel sodat elkeen darem 

'n idee het hoe hulle lyk ± terselfdertyd 

het die Fakulteit ook weer die geleentheid 

gekry om die agt departementshoofde 

goed deur te kyk aangesien dit 

hulle taak was om die nuwe lede bekend 

te stel. Die funksie is afgesluit met 

verversings in die ingangsportaal. 'n 

Hartlike woord van dank en waardering 

gaan aan Susan Burger, ons Fakulteitsekretaresse, 

wat die openingsfunksie georganiseer 

en haar uitstekend van haar 

taak gekwyt het. 

Nuus uit die departemente 

Dekaanskantoor 

Op uitnodiging van professor Jan Smits 

van die Universiteit van Maastricht, 

Nederland, het ek op 18 Mei 'n referaat 

gelewer oor ``Tort law in South Africa: 

The mixing of the general and the 

particular'' tydens 'n konferensie oor 

The Contribution of Mixed Legal Systems to 

European Private Law. My betrokkenheid 

by die groep Europese delikteregdeskundiges 

wat ten doel het om 'n stel 

algemeen aanvaarbare delikteregbeginsels 

vir Europa te ontwikkel, word ook 

vanjaar (22±25 Junie) voortgesit wanneer 

ons in WuÈ rzburg, Duitsland, by- 

91

AppeÂ lregter JJ Hefer, Prof JJ Henning (dekaan) (voor) AppeÂ lregters W Vivier en PE Streicher, Adjunk 

Regter-President HCJ Flemming en Prof J Neethling (agter) tydens die 50 jarige Feesdinee van die 

Regsfakulteit van die Universiteit van die Oranje-Vrystaat 

eenkom om aandag aan skuldlose of 

strikte aanspreeklikheid te gee. Die 

derde uitgawe van my en professors 

Johan Scott en Johan Potgieter se Case 

Book on the Law of Delict/Vonnisbundel oor 

die Deliktereg is in Januarie gepubliseer. 

Intussen is ek ook herkies as voorsitter 

van die Universiteit se Dekanekomitee, 

en aangewys as lid van die Uitvoerende 

Komitee van die Universiteitsraad. 

1999 was die feesjaar van die Fakulteit 

Regsgeleerdheid van die Universiteit 

van die Oranje-Vrystaat. Die Fakulteit 

het nie net sy vyftigste bestaansjaar as 

onafhanklike Fakulteit herdenk nie, 

maar ook die tagtigjarige herdenking 

van die toekenning van die eerste LLBgraad. 

Ek het as dekaan eÂ n oudstudent 

die reuÈ nie-dinee op 15 Oktober 1999 in 

die Bloemfonteinse stadsaal bygewoon. 

Ons hartlike gelukwense en beste wense 

gaan aan professor Johan Henning (dekaan 

en oudlid van ons Departement 

Handelsreg) en sy Fakulteit. 

Ek was ook bevoorreg om op 4 

Oktober 1999 'n dinee ter ere van 

professor Ellison Kahn mee te maak. 

Die doel was om professor Kahn se 

vyftigste jaar van verbondenheid aan 

die redaksie van die South African Law 

Journal te vier, en terselfdertyd van hom 

as redakteur afskeid te neem. Die reuse 

omvang en uitstekende gehalte van 

professor Kahn se bydrae tot die Suid- 

Afrikaanse reg kan nie in woorde 

beskryf word nie. Hy is waarlik een 

van ons grootste juriste, en verdien 

daarom alle lof en waardering wat hom 

toegebring word. Hier word volstaan 

met die slot van Derek van der Merwe 

se huldeblyk (in Zeffertt & Paizes (reds) 

A Tribute to Ellison Kahn (1999) 37): 

``[H]is quiet dignity, his unfailing courtesy, 

his massive erudition and elegance 

92

of style and of manner, and his huge 

and varied scholarly output, mark him 

as a true gentleman and a distinguished 

scholar and one in respect of whom I 

would gladly admonish my peers with: 

``Stil, broers [en susters], daar gaan 'n man 

verby.'' Voorts het ek op 27 Januarie 

vanjaar die Fakulteit verteenwoordig by 

die viering van die tiende herdenking 

van die totstandkoming van die Skole 

vir Regspraktyk van die prokureurs se 

Regsgenootskap van Suid-Afrika. Ons 

deel in hulle suksesvolle, enorme bydrae 

tot die toeganklikmaking van praktiese 

prokureursopleiding in Suid-Afrika en 

is trots op, en koester, die Fakulteit se 

noue verbintenis met die Pretoria Skool 

op ons Sunnyside kampus en sy direkteur, 

Nic Swart. Laastens het ek ook die 

afsluitingsdinee van die Sentrum vir 

Internasionale en Vergelykende Arbeidsreg, 

waarvan professor Marius Olivier 

die direkteur en ek lid is, op 29 

November 1999 (toevallig die uwe se 

verjaarsdag) by die Randse Afrikaanse 

Universiteit bygewoon. 

On 25 February 2000 Professor Roy 

Killen, a senior lecturer at the University 

of Newcastle, which is just north of 

Sydney, Australia, was the guest of the 

Law Faculty and addressed us on OBE 

and related matters. He is also an 

extraordinary professor at the University 

of Pretoria who started out as an 

engineer, but changed to education later 

on. He has visited South Africa at least 

half a dozen times, working with the 

Faculty of Education at Unisa and at the 

University of Pretoria, as well as with 

the Faculty of Science at Vista and a 

number of Technikons. He has coauthored 

articles with Bill Spady, the 

USA specialist in OBE, including an 

article on OBE in South Africa. He has 

practical experience in OBE in Australia, 

and is very familiar with SAQA and the 

way OBE is being implemented in South 

Africa. 

Finally, Mr Tsepo Constable, our law 

librarian, completed the BInf (Hons) 

(honours BA in Information Science) 

degree at Unisa in 1999, as well as the 

Advanced Labour Law Certificate Programme 

of the Department of Mercantile 

Law early this year, while Mr 

Nataniel Mampho, the student assistant 

in the Dean's Office, completed the LLB 

degree at Unisa in 1999. We congratulate 

them on their hard work and 

success and wish them the very best 

for the future. 

Department of Constitutional and Public 

International Law 

The head of Department, Professor 

Dawid van Wyk, was invited to give 

lectures on the ``Constitutional state and 

the provinces'' at the Western Cape 

Administration Academy in Stellenbosch 

in November 1999. He will be 

on research and development leave from 

1 March to 31 December 2000, and 

Professor Neville Botha has been appointed 

acting head of the Department 

for this period. Professor Botha's willingness 

to take on this responsible task 

is much appreciated. The Department 

was honoured by the appointment of 

Justice Lawrie Ackerman of the Constitutional 

Court as Professor Extraordinarius. 

Mention has already been made of 

Professor Elmene Bray's involvement 

(with Prof JM Potgieter of Private Law) 

in the development of Education Law as 

an elective in the LLB degree, as well as 

in the teaching of this subject as a 

service module for the Faculty of Education. 

Professor Bray is currently also 

writing four monographs for the Faculty 

of Education's Masters programme in 

Education Law, and she is still very 

actively involved in the activities of 

CELP, the Centre for Education Law 

and Policy. Professor Bray had the 

honour of being invited by the Oxford 

Round Table on Education Policy to 

93

participate in a colloquium on Public 

School Law. This will be held at St 

Anthony's College in Oxford in July 

2000. 

Professor Gretchen Carpenter is still 

involved in the drafting of the University 

Statute as well as the Senate rules, 

while Professor Neville Botha has been 

elected President of the South African 

Branch of the International Law Association 

(SABILA). He has also written 

the South African section of a book 

called Treaty Law and Practice, published 

by the American International Law 

Association. Professor Yvonne Burns 

attended a conference on The Right to 

know: human rights censorship and access to 

information at Oxford in February this 

year. In November 1999, Professor 

Christo Botha attended a series of 

seminars on the Law of Armed Conflict 

in Greece and is still very much involved 

in teaching Interpretation of Statutes at 

the University of Pretoria. The University 

of Zimbabwe in Harare invited 

Professor Margeret Beukes to act as 

external examiner in the Department of 

Public Law at the end of January 2000. 

Departement Privaatreg 

Daar is reeds melding gemaak van 

professor JM Potgieter, hoof van die 

Departement, se betrokkenheid by Onderwysreg 

(saam met prof E Bray van 

Staatsreg) en die publikasie van die 

derde uitgawe van Casebook on the Law 

of Delict/ Vonnisbundel oor die Deliktereg, 

waarvan hy mede-outeur is saam met 

professors Neethling en Scott. Daar is 

ook reeds vermeld dat die departement 

drie staatmakers verloor het, naamlik 

professors DSP Cronje, Niek Wiechers 

en AJ van der Walt. 

Professor Susan Scott is met navorsings- 

en ontwikkelingsverlof en, soos 

bekend, was sy die eerste drie maande 

vanjaar op uitnodiging 'n gasprofessor 

by die Universiteit van Leuven in BelgieÈ . 

Professors Luanda Hawthorne, Jeannie 

van Wyk en me Loma Steynberg (vanaf 

Proff JM Potgieter, A van Aswegen, J Neethling, SJ Scott (agter), JG Lotz, DSP Cronje en NJ Wiechers (voor) 

van die Departement Privaatreg tydens laasgenoemde twee se afskeidsfunksie 

94

1 April) is insgelyks met studieverlof, 

eersgenoemde om 'n LLM-vraestel in 

``Drafting of contracts'' te ontwikkel, 

professor Van Wyk om die prokureurs 

se Skool vir Regspraktyk by te woon en 

'n leerklerkskap as kandidaatprokureur 

te deurloop, en me Steynberg om te 

werk aan haar doktorale proefskrif oor 

Verwere by gedingvoering oor motorvoertuigongelukke. 

Professor Van Wyk is intussen 

ook verkies as lid van die Institusionele 

Forum. 

Dit kom voor of die Departement die 

Departement Privaatreg van die Universiteit 

van Pretoria vanjaar oorgeneem 

het: Professor J Heaton en me De Jong 

het elk 'n lesing vir die LLM-vraestel oor 

Kinderreg gegee, terwyl professor Tomas 

Floyd Skadevergoedingsreg, me Hanneretha 

Kruger Personereg en me Steynberg 

Verrykingsaan-spreeklikheid en 

Persoonlikheidsreg doseer. Professor 

Heaton het ook vyf hoofstukke geskryf 

vir die tweede uitgawe van Boberg se 

Boberg's Law of Persons and the Family wat 

in 1999 deur Juta uitgegee is, en het by 

die Sandton Law School lesings vir 

kandidaatprokureurs gegee. Voorts het 

me De Jong, na professor Wiechers se 

uittrede, die administrering van die 

Sertifikaat in Bestorwe Boedels wat 

Unisa in samewer-king met Voortgesette 

Regsopleiding van die Prokureursorde 

aanbied, op haar geneem. 

Me S Jacobs is met kraamverlof na die 

geboorte van 'n seun. Hartlik geluk! Drie 

nuwe studente-assistente is in die Departement 

aangestel: mnr LT Mafoane, 

mnr MH Raphasha en mnr RP Phatshwane 

± eersgenoemde twee vanaf Julie 

1999, en laasgenoemde vanaf die begin 

van die jaar. Ons verwelkom hulle in die 

Fakulteit. 

Department of Mercantile Law 

The Department also appointed three 

new student assistants this year. They 

are Mr S Levi, Mr SB Mngomezulu and 

Ms DM Selemela. A hearty word of 

welcome to them. We hope that their 

association with the Department and the 

Faculty will be a happy and fruitful one. 

Professors MK and PH Havenga returned 

from Cambridge, where they were Visiting 

Fellows of Graig Hall, late last year. 

Ms M Kelly completed her LLM degree 

with specialisation in Commercial Law 

with distinction. Congratulations! Ms 

TM Dooka and Mr TE Manamela also 

made good progress with their LLM 

studies, and were admitted as advocates 

of the High Court of South Africa. 

In October last year, Ms Dooka, Mr E 

Hurter, Ms MM Geldenhuys, Mr Manamela 

and Ms IL van Jaarsveld attended 

a national workshop with the theme 

Teaching Mercantile Law in the New 

Millennium at the University of Stellenbosch. 

In December 1999, Professor AC 

Basson went on a study visit to the 

United States, while in January this 

year, Ms Geldenhuys attended a working 

symposium on quality assurance in 

open and distance learning hosted by 

Unisa and Technikon RSA. Also in 

January, Professor CJ Visser, head of 

the Department, participated in a workshop 

on TRIPS implementation issues in 

Accra, Ghana. The Department, through 

its Centre for Business Law, co-hosted 

its annual Commercial Law Update with 

Juta in March 2000. The following 

members of staff delivered papers: Professor 

Basson (``Some recent developments 

in strike law''), Professor RCD 

Franzsen (``Some issues regarding local 

government: Property Rates Bill''), Mr 

CJ Garbers (`Èvidence and proof of 

employment discrimination under the 

Employment Equity Act''), Ms Geldenhuys 

(``Co-operative societies''), Professor 

MK Havenga (``The business 

judgement rule ± should we follow the 

Australian example?''), Mr Hurter 

(``Dispute resolution in cyberspace''), 

Professor SM Luiz, Ms A Loubser and 

Ms Dooka (``Recent developments in 

95

corporate law''), Mr Manamela (``The 

employer's duty to consult in terms of 

section 189 of the Labour Relations 

Act''), Mr TWW Phala (``The impact 

of the Constitution on tax law''), Professor 

T Pistorius (``The protection of 

electronic databases''), Professor BR 

Rutherford (``Well-known marks on 

the Internet''), Professor WG Schulze 

(``The South African Banking Adjudicator 

± a brief overview''), Dr A Smith 

(``The protection of insurance policy 

benefits under section 63 of the Longterm 

Insurance Act''), Professor GJ 

Swart (``The Cactus Investments case''), 

Ms Van Jaarsveld (``The rights of the 

true owner in terms of section 81 of the 

Bills of Exchange Act''), Professor JP 

van Niekerk (``Fraudulent insurance 

claims''), and Professor Visser (``The 

liability of online service providers for 

copyright infringement''). 

In April, Professor Visser attended the 

meeting of the Standing Advisory Committee 

on Copyright of the World Intellectual 

Property Organization in 

Geneva. The following members of staff 

delivered papers at the Annual Banking 

Law Update: Professor JT Pretorius 

(Bills, Cheques, and Notes), and Professors 

Pistorius and Visser (Intellectual 

Property Law and Cyberlaw). Professor 

DA Ailola participated in the Department 

of Trade's Law Review Programme 

for Small and Medium Sized Enterprises. 

He was also appointed by the 

Minister of Justice to the Project Committee 

of the South African Law Commission 

regarding the reform of our 

domestic arbitration law. 

On the publications front, Professors 

MK Havenga and Pretorius were coauthors 

of the sixth edition of Hahlo's 

Company Law through the Cases. Professor 

Pretorius was the general editor of this 

standard text, as well as co-author of the 

second edition of Entrepreneurial Law. 

Professor Havenga also received the 

Hugo de Groot prize for the best contribution 

on constitutional issues to the 

Tydskrif vir Hedendaagse Romeins-Hollandse 

Reg for 1999. 

Departement Inheemse Reg 

Professor Louis Vorster, hoof van die 

Departement, is vanaf 1 Februarie tot 30 

April met navorsings- en ontwikkelingsverlof 

en professor Frans Whelpton 

neem waar as departementshoof. Professor 

Whelpton is steeds besig met die 

boekstawing van die inheemse Swazireg 

in Swaziland. Hy beoog om later vanjaar 

te begin met die tweede fase van die 

projek, naamlik die harmonisering van 

die reg. Soos bekend, is professors 

Vorster en Whelpton lede van die 

Sentrum vir Regsterminologie in Afrikatale, 

waar hulle nog steeds werk aan 

'n drietalige verklarende lys van terme 

oor die straf- en strafprosesreg in Engels, 

Afrikaans en Noord-Sotho. Die vertaling 

van die lyste in van die ander Afrikatale 

het ook reeds 'n aanvang geneem. 

Institute of Foreign and Comparative Law 

Last year, the Institute could continue 

with its tradition to temporarily appoint 

foreign academics to its staff, and thus 

to further and promote academic exchange 

on an international level. In 

August, Mr Rui-Ping Liu from the 

People's Republic of China (PRC) joined 

the Institute in the capacity of visiting 

researcher. Mr Liu is a lecturer at the 

College of Political Science and Law at 

the renowned Xuzhou Normal University, 

Jiangsu Province, PRC. He also 

works as an attorney in the same 

province. In November 1999, Mr Liu 

presented the following three lectures to 

the Faculty of Law: ``Foreign understanding 

of Chinese law'', ``China's 

legal framework for foreign investment'', 

and ``China's practice of Private 

International Law'', which were attended, 

inter alia, by members of the 

Department of Foreign Affairs, repre- 

96

sentatives of foreign diplomatic missions, 

attorneys, businessmen who have 

trade links with the PRC, and interested 

members from other faculties in the 

University. 

In October 1999, both Professors 

Thomashausen and Schulze attended a 

seminar organised by the Western Cape 

Chamber of Commerce and Industry, 

where they presented papers on ``Free 

trade and export processing zones as 

entry level requirements for export 

industrialised nations'' and ``Free ports 

and offshore corporate and banking 

services'', respectively. Professor Thomashausen, 

upon the invitation of the 

Konrad-Adenauer Foundation, attended 

the International Conference on the Making 

of Zimbabwe's New Democratic Constitution 

held in Harare in November last year 

where he read papers on ``Levels of 

government'' and ``Central Bank independence''. 

For the first half of 2000, the Institute 

plans to organise a South African- 

Chinese law conference, together with 

a large Johannesburg firm of attorneys. 

This will be a unique opportunity for 

South African business, the financial 

sector, academics, policy makers and 

the media to increase their knowledge of 

the Chinese legal system and business 

environment, especially in the light of 

the recently signed bilateral agreements 

on Trade, Economic and Technical Cooperation, 

on the Establishment of a 

Joint Economic and Trade Commission, 

and on the Reciprocal Encouragement 

and Protection of Investments. 

Departement Jurisprudensie 

Professor Rena van den Bergh is eenparig 

verkies en deur die Raad aangestel as 

hoof van die Departement na die aftrede 

van professor Joan Church. Namens die 

Fakulteit wens ons professor Van den 

Bergh van harte geluk, en wens haar 

baie strerkte met haar belangrike en 

verantwoordelike taak toe. Emeritusprofessore 

Church en Van Blerk is 

intussen ook aangestel as navorsingsgenote 

in die Departement ± dit stel hulle 

in staat om na hulle aftrede nog steeds 

'n bydrae tot die Departement se navorsingsuitset 

te lewer. Ons wens hulle 

geluk met die eer, en verwelkom hulle 

langs hierdie weg weer terug in die 

Fakulteit, waar hulle navorsing nog 

steeds vrug kan dra. 

Professor Gardiol van Niekerk het 

haar intreerede as professor op 23 

Februarie vanjaar gelewer oor die onderwerp 

`Ìndigenous law, public policy 

and narrative in the courts''. Haar 

loopbaan in die Fakulteit het in 1977 

'n aanvang geneem met haar aanstelling 

as studente-assistent in die destydse 

Departement Regsgeskiedenis, Regsvergelyking 

en Regsfilosofie (tans Jurisprudensie). 

Sy is in 1979 tot lektor, in 1984 

tot senior lektor, in 1991 tot medeprofessor 

en verlede jaar tot volprofessor 

bevorder. Professor Van Niekerk het 

beide die LLM- en die LLD-graad aan 

Unisa voltooi, wyd in wetenskaplike 

tydskrifte en regsboeke gepubliseer, en 

verskeie referate by nasionale en internasionale 

konferensies gelewer. Sy is 

ook lid van verskeie wetenskaplike 

organisasies, 'n erelid van die Sentrum 

vir Inheemse Reg, en dien op die Raad 

van die Suider Afrikaanse Vereniging 

van Regshistorici. Haar gade is professor 

JP van Niekerk van die Departement 

Handelsreg, en hulle het twee seuns. 

Ons wens haar hartlik geluk met hierdie 

besondere mylpaal in haar lewe, en 

vertrou dat haar loopbaan in die Fakulteit 

steeds van krag tot krag sal gaan. 

Professor Elsabe Schoeman is aanvaar 

as deelnemer by die Haagse Somerskool 

oor Internasionale Privaatreg in Den 

Haag, Nederland, later vanjaar. Dr MN 

Slabbert is met navorsings- en ontwikkelingsverlof 

terwyl mnr Wessel le Roux 

lesings oor Regsleer by die Universiteit 

van Pretoria gee. Vanaf 8 tot 10 Maart 

97

vanjaar het mnr David Taylor 'n konferensie 

oor onderwysreg in Port Elizabeth 

bygewoon. 

Die Departement was baie jammer om 

na baie jare die dienste van me Susan 

Hutchings te verloor ± sy het saam met 

haar gesin na Amerika verhuis. Me M 

Mohlala het ook die Departement verlaat 

ten einde haar voltyds aan haar 

prokureurspraktyk te wy. Ons wens 

beide kollegas alles wat mooi is vir die 

toekoms toe. Hoe ook al, die Departement 

was gelukkig on intussen tydelik 

die dienste van me M van Jaarsveld te 

bekom. Haar tweelingsuster is reeds in 

die Departement Handelsreg werksaam, 

en ons vertrou dat sy haar werksaamhede 

by die Fakulteit sal geniet. Soos in 

Privaatreg, was die ooievaar ook hier 

werksaam. Me A Jacobs en Me SG 

Mbatha is tans met kraamverlof nadat 

elk 'n dogtertjie ryker geword het. Ons 

hoop dat dieÂ krose net vreugde sal bring. 

Department of Criminal and Procedural Law 

Professor Rita MareÂ , Vice Dean and 

head of Department, was ± and is as 

always ± leading a very busy life. She 

served(s) on various committees, inter 

alia, the Executive Committee of Senate, 

the Institutional Forum, the Rules Committee 

of these two committees, numerous 

selection committees for the 

appointment of academic staff, and the 

Student Academic Disciplinary Committee. 

As said, Professor John Faris 

facilitated a series of workshops aimed 

at revising Faculty structures, while 

Professor Peet Bekker spent part of his 

research and development leave in the 

USA, where he conducted research at 

the University of Arizona in Tucson, 

Arizona, on the maximum length of 

imprisonment after the abolition of the 

death penalty. A comparative note on 

the legal positions in the USA and South 

Africa was published in Comparative and 

International Law Journal of Southern 

Africa. He used the remainder of his 

period of leave sitting as an assessor 

with a judge of the High Court in 

Johannesburg in murder and armed 

robbery cases. Professor Bekker also 

finalised a new LLM caput that was 

introduced at the beginning of 2000, 

dealing with one aspect of a fair trial, 

namely `à speedy trial''. 

Professor SA Strauss is steeds direkteur 

van die Sertifikaatkursus in Geneeskunde 

en Reg, 'n kursus waarvoor daar 

groot belangstelling is. Hy het ook 

deelgeneem aan 'n werkswinkel by die 

Fakulteit Geneeskunde van die Universiteit 

van Pretoria oor aspekte van die 

mediese reg. Verder is hy benoem tot 

buitengewone professor in regte sowel 

aan die Universiteit van Pretoria as aan 

Unisa. Professor Sas het op 13 Maart 

2000 sewentig geword. Ons wens hom 

namens die Fakulteit van harte geluk en 

nog vele jare van voorspoed en goeie 

gesondheid toe. Professors Johan Joubert, 

Peet Bekker, Petro Swanepoel en 

Stephan Terblanche se vierde uitgawe 

van hulle Strafprosesreg Handboek het in 

Oktober 1999 verskyn. Soos reeds geseÃ 

is, word 'n nuwe keuse-LLB-module oor 

vonnisoplegging in 2001 ingestel. Professor 

Terblanche is verantwoordelik vir 

die opstel en loodsing daarvan. Professor 

Sunette LoÈ tter is tans voorsitter van 

die Fakulteit se Bemarkingskomitee. In 

hierdie hoedanigheid het sy 'n stalletjie 

by 'n opvoedkundige uitstalling ter 

bemarking van die Fakulteit te Gallagher 

Estate ``beman''. 

Professor Estelle Hurter was in die 

middel van 1999 met navorsings- en 

ontwikkelingsverlof in Kanada en Londen, 

waar sy navorsing oor klasaksies 

en gebeurlikheidsgelde gedoen het. Sy 

het terselfdertyd ook kennis gemaak met 

deskundiges op daardie gebied, en goeie 

kontakte vir die sertifikaatkursus ``Women 

and the Law'' opgebou. Sy is weer 

betrokke by die traumasentrum, Inter 

Trauma Nexus, waar sy opleidingskur- 

98

susse en werkswinkels oor gesinsgeweld 

aanbied. Professor Hurter het in Oktober 

1999 by 'n plaaslike konferensie 'n 

referaat gelewer rakende internasionale 

perspektiewe op gesinsgeweld. Soos 

bekend, het Dr Louise Jordaan in Desember 

1999 navorsing gedoen aan die 

Max Planck Instititut te Freiburg, Duitsland, 

oor die voorkoming van georganiseerde 

misdaad. 

The second edition of Prof Dana van 

der Merwe's Computers and the Law was 

published by Juta early this year. He also 

delivered two papers: one entitled ``The 

legal and security aspects of information 

capture and sharing'' at the Info Smart 

Africa 2000 Conference on 28 March, and 

the other at the National Summit on Cyber 

Crime and Security on `Àn overview of 

cyber crime in South Africa'' on 12 July 

2000. Ms Fawzia Cassim was admitted 

as a conveyancer of the High Court of 

South Africa, while Adv Abel Ramolotja 

won a scholarship to do research with a 

view to completing his LLM dissertation. 

He will be visiting the JW Goethe 

University in Frankfurt, Germany, in 

June. 

Unisa Legal Aid Clinic 

Volgens mnr Mauritz Lombard, Direkteur 

van die Kliniek, sien die personeel 

van die Kliniek uit na 'n goeie 2000. Die 

personeeltal het in vergelyking met 

1999 konstant gebly. Een kandidaatprokureur, 

me Maureen Mobeni, is gedurende 

1999 toegelaat as prokureur in die 

Transvaalse Provinsiale Afdeling van 

die HoeÈ Hof, en ons wens haar sterkte 

met haar regsloopbaan toe. Daar is tans 

vyf kandidaatprokureurs wat hulle leerkontrakte 

by die Kliniek uitdien ± een 

van hulle sal waarskynlik later vanjaar 

as prokureur toegelaat word. 

Studente (80) wat vanjaar vir die 

kursus Inleiding tot die Regspraktyk 

geregistreer is, moet vyf seminare bywoon, 

asook die jaarlikse skynhof wat 

in Augustus in die HoeÈ Hof plaasvind. 

By dieÂ geleentheid word daar van 

studente verwag om 'n appeÁ l voor 

regters van die HoeÈ Hof te argumenteer. 

Hierdie is 'n belangrike dag vir ingeskrewe 

studente in Gauteng aangesien 

die skynhof verpligtend is ten einde vir 

eksamentoelating te kwalifiseer. Die 

geleentheid dien tegelykertyd as afsluitingsfunksie. 

(LW: Studente moet ook 

klasse in Kaapstad, Durban en Port 

Elizabeth bywoon.) Verlede jaar het die 

skynhof en afsluitingsfunksie op 28 

Augustus plaasgevind, en professor Nic 

Wiechers, voorsitter van die Kliniek se 

Beheerkomitee, het 'n kort bedankingstoespraak 

gelewer. Namens die Fakulteit 

wil ek ook, sonder om enige name te 

noem, ons dank uitspreek teenoor die 

regters, landdroste en advokate wat te 

midde van vol programme nog elke jaar 

die tyd inruim om ons op 'n Saterdagoggend 

(van alle tye!) met die skynhof 

behulpsaam te wees. Wees verseker van 

ons opregte waardering. 

Die volgende is die statistiek van die 

Kliniek se werksaamhede vir 1999: 

Aansoeke ontvang om regshulp 

(2 041); leÃ ers geopen (622); algemene 

sake (1 419); telefoniese advies (1 148); 

Unisa personeel (212); formele konsultasies 

(4 953); studentenavrae (233); 

Hofverskynings: egskeidings (in die HoeÈ 

Hof en die Noord-Oostelike Egskeidingshof) 

(372); mosie-aansoeke in die 

HoeÈ Hof (30); straf- en siviele sake in 

die landdroshof (382); in die arbeidshof 

en voor versoeningsrade (19). Die totale 

aantal hofverskynings was 802. Heelwat 

sake waarin interessante feite ter sprake 

was of waarin groot bedrae geld aan 

regshulpklieÈ nte toegeken is, is in 1999 

afgehandel. Soos blyk uit die statistiek, 

baat Unisa se personeel ook deurgaans 

by die professionele diens van die 

Kliniek, en word, soos in die verlede, 

die Kliniek se reuse bydrae tot die 

lewering van gemeenskapsdiens beklemtoon. 

99

Faculty of Law 

Dean: J Neethling BA LLB (UOVS) LLM 

(McGill) LLD (Unisa) 

Vice-dean: MC MareÂ BIur et Art LLB (PUCHO) 

LLD (Unisa) 

Faculty Secretary: SM Burger BA (Unisa) Nas 

Sert Sekr (Tech Pret) 

Faculty Librarian: FT Constable BBibl (Unitra) 

BInf (Hons) (Unisa), MDip HRM (RAU) 

Student assistant: Mr N Mampho BIuris (Dbn- 

Westville) 

Indigenous Law 

Professors: LP Vorster* MA DPhil (PUCHO) 

BIur LLB (Unisa); FPvR Whelpton BA (Pret) 

LLB LLD (Unisa) THOD (Pret) 

Secretary: CP Myburgh 

Student-assistant: C van Vollenhoven BIuris 

(Unisa) LLB (Unisa) 

Constitutional and Public International Law 

Professors: DH van Wyk* BIur et Art (PUCHO) 

LLB (RAU) LLM LLD (Unisa); H Booysen BIur 

LLB LLD (UPE); NJ Botha BIur LLB (Pret) LLD 

(Unisa); YM Burns BIur LLB LLM LLD 

(Unisa); G Carpenter BA (Hons) LLB (Pret) 

Associate Professors: M Beukes BA (Stell) LLB 

LLM LLD (Unisa); CJ Botha BA (Hons) 

(Unisa) LLB (Pret) LLD (Unisa); H Botha 

BLC LLB (Pret) LLM (Columbia) LLD (Pret) 

Senior Lecturer: I Southwood BA (Stell) LLB 

(Unisa) 

Lecturers: SR Budhu BProc LLB (UND); CN 

Chetty BProc (UND) 

Research assistants: MF Mdumbe BIur (Unisa); 

PF Matabane BIur (Unisa) 

Secretary: R Westpfahl 

Verloren van Themaat Centre: JD van Doorne 

BA (Unisa) 

Criminal and Procedural Law 

Professors: MC MareÂ * BIur et Art LLB (PUCHO) 

LLD (Unisa); PM Bekker BA LLB (Pret) LLD 

(Unisa); JA Faris BA (Pret) LLB (Unisa) LLM 

(UCT) LLD (Unisa); JJ Joubert BA LLB (Pret) 

LLD (Unisa); S LoÈ tter BA LLB (RAU) LLM 

LLD (Pret); CR Snyman BA LLB LLD (UOVS); 

SS Terblanche BIuris (PUCHO) LLB LLD 

(Unisa); DP van der Merwe BIuris (UPE) 

LLB LLD (Unisa) 

Emeritus professor: SA Strauss SC ELM BA 

(US) LLB (UOVS) LLD (Unisa) 

100 


Associate professors: E Hurter BA LLB (Pret) 

LLM LLD (Unisa); RA Kelbrick BA (Pret) LLB 

(Stell) LLM LLD (Unisa); JP Swanepoel BIur 

et Art LLB (PUCHO) LLM (Unisa) 

Senior lecturers: K Alheit BIur (Pret) LLB LLD 

(Unisa); F Cassim BA (UDW) LLB (UN Natal) 

LLM (Unisa); M Jansen BA LLB (Unisa) Dip 

APP (Pret) OLST (Unisa); L Jordaan BProc 

(RAU) LLB LLD (Unisa); SS Nel BLC LLB 

(Pret) LLM (Unisa); ED Swart BLC LLB (Pret) 

LLM (Unisa) 

Lecturers: LC Coetzee BLC LLB (Pret); BC 

NaudeÂ BIur LLB (Unisa); MA Ramolotja BIur 

LLB (Univ North) 

Student assistants: RWH Nkhumise BIur 

(Unisa); N Pool BCom (Pret) LLB (Stell) 

Secretaries: CE Rosin Nas Dip Sekr (Tech Pret); 

JSMM Sim; I Slot Nas Dip Sekr (Tech Pret) 

Jurisprudence 

Professors: GJ van Niekerk BA LLB (Pret) LLM 

LLD (Unisa); CW van Wyk BA (Stell) HOD 

(Pret) LLB LLM LLD (Unisa) 

Associate professors: H van den Bergh* MA LLB 

LLD (Unisa); E Schoeman BLC (Pret) LLB LLD 

(Unisa) 

Senior lecturers: A Jacobs BA (Hons) LLB (Pret) 

LLM (Unisa); M NoÈ thling-Slabbert BA (Pret) 

BA (Hons) (Pret) MA (Pret) DLitt (Pret) LLB 

(Unisa); WB le Roux BLC LLB (Pret) 

Lecturers: DC Taylor BA LLB (Wits) BA (Hons) 

(Unisa); SG Mbatha BProc LLB (UDW); 

Student assistants: EM Mahlobogwane BProc 

(Vista); S Phoshera BIuris (Unisa) 

Street law: AM Mthembu BIur LLB (Unizul) 

Secretaries: CJ Cromhout; EC Venter HOD 

(GOK) 

Mercantile Law 

Professors extraordinara: ED du Plessis BSc 

(Chem) LLB (Pret); PAK le Roux BIur (RAU) 

LLM (Unisa) LLM (London) 

Professors: CJ Visser* BCom LLB (Stell) LLM 

(RAU); DA Ailola LLB LLM (Zambia) LLM 

(Cornell) PhD (Warwick); RCD Franzsen BLC 

LLB (Pret) LLD (Stell); MK Havenga BA LLB 

(Pret) LLM LLD (Unisa); PH Havenga BA LLB 

LLM (RAU) LLD (Unisa); JT Pretorius BIur 

(Pret) LLB (Natal) LLM (UCT) LLM (London) 

LLD (RAU); BR Rutherford BA LLB (Pret) 

LLM (London); GJ Swart BCom BIur (Pret)

LLB (Unisa) LLM (Stell); JP van Niekerk BA 

LLB (Pret) LLM (Unisa) LLM (London) LLD 

(Unisa) 

Associate professors: AC Basson BLC LLB (Pret) 

LLD (Unisa); SM Luiz BA LLB (Natal) LLM 

(Cantab) HDip Co Law (Wits); T Pistorius BA 

(Pret) LLB (Unisa) LLM LLD (Pret); WG 

Schulze BLC LLB (Pret) LLD (Unisa); 

Senior lecturers: RG Evans BLC LLB LLM (Pret); 

CJ Garbers BLC LLB (Pret) BCom (Hons) 

(Unisa); A Loubser BA LLB (Pret); AD Smith 

BA LLB (Rhodes) PhD (Edin); KE van der 

Linde BIur LLB BA (Hons) (PUCHO) LLM 

(Unisa); BA van der Merwe BA LLB (Stell) 

LLM (Unisa) 

Lecturers: TM Dooka BProc LLB (UNIN); MM 

Geldenhuys BA HOD (Pret) LLB (Unisa); E 

Hurter; M Jansen BLC LLB (Pret); M Kelly 

BIuris LLB (Unisa) Dip Insolvensie Praktyk 

(RAU); TE Manamela BProc LLB (UNIN); M 

McGregor BLC (Pret) LLB (Unisa); TWW 

Phala BIur LLB (Unizul); IL van Jaarsveld 

BIuris LLB (Pret) LLM (Hull) 

Student assistants: M Aphane BIur (Unisa); 

S Levi; SB Mngomezulu; DM Selemela BIur 

(UNIN) 

Secretaries: LSE Cloete; CJE Koeleman; 

S Mothibedi; MA Roux 

Private Law 

Professors: JM Potgieter* BIur LLB LLM (RAU) 

LLM (Harvard) LLD (Unisa); L Hawthorne BA 

LLB LLD (Pret); SJ Scott BA LLB (Pret) LLD 

(Unisa); A van Aswegen BA LLB (Pret) LLD 

(Unisa); AMA van Wyk BBibl (Pret) LLB 

(Unisa) LLM (Wits) LLD (Unisa); 

Associate professors: M Blackbeard BProc LLB 

(Pret) LLD (Unisa); J Heaton BLC LLB (Pret) 

LLM (Unisa); A Roos BLC (Pret) LLB (Unisa) 

LLM (Michigan); TB Floyd BA LLB (Pret) LLD 

(Unisa) 

Senior lecturers: PD Brink BA LLB (Stell); M de 

Jong BLC LLB (Pret); J Jamneck BLC LLB LLD 

(Pret); JC Knobel BLC LLB (Pret) LLD (Unisa); 

JM Kruger BIur LLB (UOVS); C±J Pretorius 

BLC LLB (Pret); L Steynberg BIur LLB LLM 

(PUCHO) 

Lecturer: S Jacobs BLC LLB (Pret) 

Junior lecturer: MM Mokotong BProc LLB 

(UNIN) 

Student assistants: LT Mafoane BIuris (Unisa); 

RP Phatshwane BIuris LLB (Unin) 

Secretaries: A Joubert BA (RAU) TOD (NKP); 

HM Sarkady 

Institute for Foreign and Comparative Law 

Director: AEAM Thomashausen Dr Iur (Kiel) 

Assessor (Germany) 

Associate professor: HCAW Schulze Dr Iur 

(GoÈ ttingen) Assessor (Germany) 

Senior researcher: ZN Jobodwana BA (Fort 

Hare) BProc (Unisa) MA (Hons) (Wollongong) 

FAO: HM Rudolph BBibl (Hons) (Pret) 

Financial administrator/Secretary: A Morris 

Unisa Legal Aid Clinic 

Director: M Lombard* BA (Pret) BProc (Unisa) 

Attorneys: D Gani BProc (Unisa); T du Plessis 

BLC LLB (Pret); J Marais BA (Stell); BProc 

(Unisa) 

Candidate attorneys: B Xaba BProc (Unisa); BJ 

Phakathi BIuris (Unisa) Mediation & Arbitration 

(USA) DPLR (Unisa); JET Tsatsi BProc 

(UNorth); LM Manzini BIuris (Venda) LLB 

(Venda); RD Boshomane BProc (UP) 

Clerks: J Mashala; A Moekoena; S Mooka 

Secretaries: CJ Badenhorst; MR KuÈ hn; SEG 

Moolman 

Cape Town Clinic 

Tutor: D Uys 

Durban Clinic 

Tutor: R Palmer 

Port Elizabeth Clinic 

Tutor: J Rubin LLM (Unisa) 

Editorial: 

M Jacobs BA (Hons) (Pret); AJ KuÈ hnast BA 

HOD (UOFS); AM Neethling BA (Pret) THOD 

(NKP); F Snyman BA HOD (UOFS); PA van 

Aardt BA HOD (Pret) Hons (Unisa) 

* Head of Department 

101

CODICILLUS 

CODICILLUS, 'n semesterblad hoofsaaklik gerig op regstudente, word 

uitgegee deur die Fakulteit Regsgeleerdheid van die Universiteit van 

Suid-Afrika. 

Intekengeld (2000): RSA: R40,00; Buiteland: Am $30,00. 

CODICILLUS, aimed mainly at law students, is published twice a year by 

the Faculty of Law of the University of South Africa. 

Subscription (2000): RSA: R40,00; Foreign: US $30,00. 

Die Bedryfsafdeling/The Business Section 

Unisa Uitgewers/Unisa Press 

Posbus/PO Box 392 

Unisa 

0003 

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CODICILLVS - University of South Africa

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