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Item Open Access Repugnancy clause and its impact on customary law: comparing the South African and Nigerian positions — some lessons for Nigeria(Faculty of Law, University of the Free State, 2009) Taiwo, E. A.English: The repugnancy doctrine was introduced into Nigeria in the 19th century through the received English laws. This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules. This article, however, contends that repugnancy doctrine had played a positive role in the development of customary law in Nigeria by removing its harsh aspects. Most African countries repealed the repugnancy provisos when they obtained independence but Nigeria still retains it. The article compares the positions in South Africa and Nigeria. In the South African context, this article found that repugnancy proviso had outlived its usefulness and courts now apply customary law subject to the Constitution and any legislation that specifically deals with customary law. This position, the article commends for Nigeria.Item Open Access The Small Claims Courts Act: annotations and comments(Faculty of Law, University of the Free State, 2009) Ross, Derrick B.Abstract not availableItem Open Access Die Civil Union Act, Draft Domestic Partnership Bill en moontlike deregulering van die huwelik(Faculty of Law, University of the Free State, 2009) Bakker, P.English: The Civil Union Act 17/2006 is compared to the Marriage Act 25/1961 to determine whether similar life partnerships should be regulated by more than one act. Thereafter the Draft Domestic Partnership Bill is investigated to determine the intended future marriage law system of South Africa. It is clear from the discussion that a hierarchy of personal relationships exist. Such a hierarchy does not promote diversity and a meassure of deregulation of marriage is proposed as a more suitable solution.Item Open Access The Constitutional Court and ubuntu's "inseparable trinity"(Faculty of Law, University of the Free State, 2009-06) Keevy, I.English: The purpose of this article is to deconstruct the Constitutional Court's definitions of ubuntu as humanness, group solidarity, umuntu ngumuntu ngabantu, personhood and a moral philosophy. It is submitted that the philosophy of ubuntu or ethnophilosophy represents a religious worldview as it is inseparable from African Religion and the African spirit world. It is argued that the advocating of ubuntu's shared beliefs and values by South African courts and the state is to the detriment of other religious philosophies as it violates section 15(1) of the Constitution and constitutes unfair discrimination.Item Open Access To suspend or not to suspend(Faculty of Law, University of the Free State, 2009-06) Conradie, Maralize; Deacon, JacoEnglish: For many employers, the suspension of an employee literally amounts to a headache. The question which usually comes to mind is: What do I have to do before I can suspend an employee? This article investigates the nature of the suspension, the courts' application thereof and makes recommendations on procedural aspects.Item Open Access The demise of the Roman-Dutch 'kommer-recht: interpretation of statutes so as to conform to the spirit, purport and objects of the South African Bill of Rights(Faculty of Law, University of the Free State, 2009-06) Swanepoel, C. F.English: The Supreme Court of Appeal (in a judgment dated 23.11.07) in the case of Bid Industrial Holdings v Strang (2007) SCA 144 (RSA) (now cited as 2008(3) SA 355 (SCA)) held that the common-law requirement of arrest to found or confirm jurisdiction where an incola plaintiff wishes to sue a foreign peregrinus, which procedure is authorised in section 19(1) (c) of the Supreme Court Act 59/1959, is unconstitutional. In essence it was so held because such an arrest restricts a person's liberty and freedom (as entrenched in section 12 (1) of the Constitution) without a just cause. This article evaluates the judgment and highlights the importance of the full historical context and rationale for the existence of a common-law rule as yardstick against which to measure its constitutional justifiability. In this instance the rationale for the existence of the common-law rule of jurisdictional arrest was also, in essence, premised on the unequal treatment of foreigners vis à vis citizens, and predictably, this could not have passed the standard set by section 39(2) of the Constitution. The article investigates the method employed by the SCA in its interpretation of the alleged unconstitutional stipulations of the Supreme Court Act so as to bring it in line with the spirit,purport and objects of the South African Bill of Rights. Special attention is paid to the criticism of the judgment that it failed to comply with the peremptory stipulations of section 172 of the Constitution. The article concludes that such criticism is unwarranted.