Research Articles (Office of the Dean: Law)

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Open Access
Poor lives matter: COVID-19 and the plight of vulnerable groups with specific reference to poverty and inequality in South Africa
(Cambridge University Press, 2021) Mubangizi, John C.
This article explores the impact of the COVID-19 pandemic on vulnerable people in South Africa in the specific context of poverty and inequality. It does so by first looking at the conceptual context and then highlighting the extent of the impact both from a constitutional and human rights context and from a legislative context. It uses the poor and vulnerable as a proxy to explore the impact of the pandemic (and the measures put in place to contain it) on the specific constitutional rights of vulnerable people, before suggesting a human rights-based approach to managing the pandemic. It concludes that, despite the South African government having undertaken some of the actions recommended, there remains room for improvement and scope for further research, as the pandemic is expected to continue for some time.
Open Access
Review: Perspectives on the law of partnerships in South Africa
(Faculty of Law, University of the Free State, 2016) Rider, Barry
Abstract not available
Open Access
The Orange Free State's strategy to continue the Anglo-Boer War in July 1900: a lost opportunity?
(Faculty of the Humanities, University of the Free State, 2011-09) De Bruin, Jaco; Wessels, Andre; Henning, Johan
More than 4 000 Orange Free State (OFS) burghers, inclusive of their most senior officers, surrendered in the Brandwater Basin in the Eastern Orange Free State (OFS) during the period 30 July to 9 August 1900. It was a military catastrophe from which the OFS would never recover. This contribution endeavours to provide new perspectives on the events leading up to the surrender by evaluating the various strategic options considered by the OFS military command during July 1900 to continue the war. It appears that two basic strategies were considered. An analysis of these provides new insights into the confusion prevailing in the Brandwater Basin, as well as the lack of effective and decisive leadership, the contradictory decisions and the concomitant conflicting orders.
Open Access
Die Britse veroweringsaanspraak op die Oranje-Vrystaat, 1900
(Faculty of the Humanities, University of the Free State, 2011-09) De Bruin, Jaco; Wessels, Andre; Henning, Johan
On 28 May 1900, Lord Roberts issued a proclamation (back-dated to 24 May 1900) stating that the Orange Free State (OFS) Boer republic was annexed as the Orange River Colony (ORC). This article deals with the British allegations that they had conquered the OFS, as early as the end of May 1900. It deals especially with the legality of these averments in the context of the law of nations. The opinions of a number of legal authorities are evaluated and applied to the situation prevailing in the OFS. Several other proclamations and opinions are also taken into consideration, as well as the events in the Brandwater Basin in July and August 1900, when a very significant number of the OFS forces in the field surrendered. The positions of and comments by General CR de Wet and President MT Steyn are evaluated, and the decisions handed down in a number of post-war court cases are considered. New light is shed on the legal status of the Boer representatives taking part in the negotiations leading up to the signing of the Peace of Vereeniging on 31 May 1902.
Open Access
Artikel 6 van die Wet op Binnekennistransaksies - 'n groepsgeding of aksie in die openbare belang vir die regulering van binnekennistransaksies?
(Faculty of Law, University of the Free State, 2001) Henning, Johan; De Bruin, Jaco
English: The Constitution introduced the concept of a class action in the South African legal system in 1993. The Constitution however limited the use of class actions to rights enshrined in the Constitution. The constitutional class action was followed by a proposal by the South African Law Commission for general legislation on class actions and actions in public interest. The Panel for Security Regulation commented on the discussion paper advocating the use of similar legislation in the fight against insider trading. The King Commission again raised the concept of a derivative action in the fight against insider trading resulting in section 6 of the Insider Trading Act. This action shares some of the characteristics of the class action and action in public interest and sets the way forward for the use of this type of legislation in the commercial world.
Open Access
Some unfinished new thoughts on unilateral acts of states as a source of international law
(Faculty of Law, University of the Free State, 2001-12) Suy, Erik
English: The unilateral acts of states in the form of a declaration concerning a legal or factual situation may create legal obligations for the state making the declaration when made with the intent to be bound. In such circumstances the intention confers on the declaration the character of a legal undertaking by the state to act in accordance with the undertaking. In this article the author revisits the hitherto restrictive definitions of the unilateral act as a source of international law in view of changed practices brought about by the progressive development and codification of the law of treaties.
Open Access
Voorwoord
(Faculty of Law, University of the Free State, 2001) Henning, J.
Abstract not available
Open Access
Permanent Secretary, Department of Welfare, Eastern Cape, and another v Ngxuza and others - hofreëls vir die voer van 'n groepsgeding?: case note
(Faculty of Law, University of the Free State, 2002) De Bruin, J.
Abstract not available
Open Access
The limited partnership review. Historical and comparative perspectives on the revival of a "commercial mongrel" in the United Kingdom
(Faculty of Law, University of the Free State, 2002) Henning, J. J.
English: The United Kingdom limited partnership can be described as the statutory equivalent of the South African partnership en commandite, which was received from French law via Roman-Dutch law. Proposed in 1838 and eventually introduced in 1907, the limited partnership has not proved as popular as its proponents would have wished for. In fact, it has been described as a "commercial mongrel" and as "dismal failure", that was sunk "almost without trace" by the private company. Nevertheless, the limited partnership presently is a useful vehicle in the United Kingdom for investors who do not wish to take an active role in the management of their funds. It offers the investor privacy, as the accounts of the partnership are not generally disclosed. Like other partnerships, it also provides the benefit of fiscal transparency. On 13 September 2000 the Law Commission of England and Wales and the Scottish Law Commission released a comprehensive joint consultation paper envisaging a thorough review of the partnership law. Consequently, the Law Commissions completed a joint consultation paper on reforms of the Limited Partnership Act 1907 which was published in November 2001. In this contribution historical and comparative perspectives are given on the proposals contained in the second joint consultation paper.
Open Access
Groepsgedingvoering - die voorstel van die Suid-Afrikaanse Regskommissie vir die sertifisering van 'n groepsgeding
(Faculty of Law, University of the Free State, 2003) De Bruin, J.
English: In this contribution the proposals of the South African Law Commission for the certification of a class action are discussed. These proposals are the products of a working paper and a report published in 1995 and 1998 respectively. In both these documents the Commission proposed the promulgation of legislation to provide the necessary framework to govern class actions. The proposals are discussed with reference to the Class Proceedings Act (Ontario) and the Federal Rules of Civil Procedure (United States of America).
Open Access
A note on the history of the Faculty of Law of the University of the Free State
(Faculty of Law, University of the Free State, 2004) Henning, J. J.; De Bruin, J. H.; Wessels, H. A.
Abstract not available
Open Access
Optimising closely held entities to enhance commercial participation and development: the Southern African experience in comparative perspective
(Faculty of Law, University of the Free State, 2003) Henning, J. J.
English: The important contribution of the small business sector to economic growth and regional development is widely and generally acknowledged. In 1984, the South African Close Corporations Act introduced a simple, inexpensive and flexible closelyheld entity for the business consisting of a single entrepreneur or small number of participants, designed with a view to his or their reasonable needs and expectations and without burdening him or them with legal requirements that would not be meaningful in the circumstances. This example was followed with varying degrees of success in Southern Africa and Australia by legislative developments aimed at the introduction, in various guises, of new legal forms for small business. In more recent law reform initiatives in Australia and especially the United Kingdom, various options were analysed to optimise closely-held entities with a view to enhancing commercial participation and economic development through small businesses. Eventually, the somewhat less imaginative approach of merely simplifying the private company was chosen. Attention will be given to the Southern African experience of closely-held entities and then to a critical comparative analysis of and perspectives on recent developments in Australia and especially the United Kingdom.
Open Access
Convergence of governance systems in SADEC: the OHADA and COMESA examples: chronicle
(Faculty of Law, University of the Free State, 2003) Henning, J. J.
Abstract not available
Open Access
The impact of Scholasticism and Protestantism on Ulrich Huber's views on constitutionalism and tyranny
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's (1636-1694) contribution to public law was initiated with his lectures on the general principles of constitutional law at Franeker. The fruits of his work culminated in his De Jure Civitatis. The era in which Huber produced this work was generally characterized by the emergence of rationalism and enlightenment in Dutch jurisprudence. More specifically Huber's work reflects the influence of the transition from enlightened absolutism to democratic government based on the will of the subjects. His views on popular sovereignty culminated in Huber's theory of limited government and resistance to tyranny. A study of the Latin text of Huber's pioneering work reveals valuable perspectives on these trends in the transition of Dutch jurisprudence from scholasticism to enlightenment.
Open Access
Huber, natural law and the reformational basis of the iurisprudentia universalis
(Faculty of Law, University of the Free State, 2005-12) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's work, De Jure Civitatis, contains the first serious effort to apply the Reformational perspectives on natural law to the field of Public Law. Not only did he integrate the perspectives on natural law with his views on Public Law generally, but he used the idea of natural law as the basis for jurisprudence as a whole (iurisprudentia universalis). In his opposition to the natural law theories of Bodin, Hobbes and Pufendorf, Huber maintained the perspective that law and justice cannot be seen as the products of utility or be determined simply by their usefulness. To Huber the principles of good and bad, lawful and unlawful, just and unjust, are based on immutable principles superceding human manipulation. For these reasons, Huber emphasises the fact that natural law is not the product of man's reason, but is based on the eternal will of God. However, man is able, with his reason, to determine the will of God from its revelation in God's moral law. In effect, then, God's eternal law is the fundamental source of natural law. As such the validity of natural law principles are not subject to an agreement among men, or to the principles of civil law, but they precede the state and the authority of government. Not only do these precepts of natural law apply as normative provisions to all elements of Public Law, but also to the rights of man (among others to life and property) irrespective of the nature and composition of the state. Huber's response to Hobbes's natural law theory in particular, highlights the importance of establishing the principles of law and justice not susceptible to the manipulation of political authorities and government authority. As such Huber's theory of natural law was not only an important contribution in his own time, but he postulated an alternative which may serve as an essential corrective in legal systems where the formal notion of the state subject to law, does not penetrate to the level of informing the material idea of the law state in a fundamental sense.
Open Access
Is die essentialia van die vennootskap ondergeskik aan die bedoeling van die partye? 'n Oorsig oor die Suid-Afrikaanse reg
(Faculty of Law, University of the Free State, 2007-06) Snyman-Van Deventer, E.; Henning, J. J.
English: When determining the existence of partnership, it is necessary to establish whether the essentialia of a partnership are present. However, apart from the essentialia, the intention of the parties is regularly referred to and it is stated that the intention of the parties shall be conclusive, even in the presence of all the essentials. This article will attempt to illustrate that only the essentials are determinants for the existence of a partnership and that the intention of the parties can only refer to the intention to comply with the essentialia. The essentialia of partnership are: the making of a contribution by each partner; the business must be conducted to the joint benefit of all the parties; and the objective of the partnership should be to make and distribute profit. Although the essentials of the partnership seem cut and dried at first glance, the whole issue is clouded by a series of court rulings in which a further requirement, viz. the intention of the parties to create a partnership was added to the essentials by reference to contrary evidence that the agreement between the parties may not be a partnership agreement. With all due respect, this view cannot be concurred. The question that has to be asked is if the intention referred to is the intention to comply with all the requirements of the partnership or the intention to specifically create a partnership?
Open Access
Die Class Proceedings Act van Ontario - 'n voorbeeld van wetgewing vir die regulering van Suid-Afrikaanse groepsgedingvoering
(Faculty of Law, University of the Free State, 2004) De Bruin, J.
English: In 1995 and 1998 the South African Law Commission proposed the promulgation of legislation to govern class action proceedings. The Class Proceedings Act of Ontario was one of the sources consulted by the Commission. According to the commission this piece of legislation played a valuable role in their recommendations. This contribution discusses this act as an example of legislation which may usefully be consulted in the drafting of a procedure to govern class actions in South Africa.
Open Access
'n Verkenning van die soorte vennootskappe in die Amerikaanse reg
(Faculty of Law, University of the Free State, 2003-12) Snyman-Van Deventer, E.; Henning, J. J.
English: This article briefly comments on the various types of partnerships encountered in American law. The types of ordinary as well as extraordinary partnerships are identified. Ordinary partnerships are only analyzed to the extent that they differ from the standard ordinary partnership. In American literature reference is made to the mining partnership, the family partnership, the partnership in real estate and the farming partnership. This differentiation is primarily based on the type of business with which the partnership is concerned. However, the mining partnership and the farming partnership differ from the ordinary partnership in a number of ways, and, as a result of their unique attributes, are discussed in detail. A brief discussion of the types of extraordinary partnerships is necessitated in order to highlight their differences. The limited partnership is discussed briefly and only the main characteristics are named.
Open Access
Die vennootskap: goeie huweliksmaat met huwelik of konkubinaat?
(Faculty of Law, University of the Free State, 2003-06) Snyman-Van Deventer, E.; Henning, J. J.
English: In this article the legal position of people in a concubinate relationship after the breakup or dissolution of the relationship in the American, Dutch and South African law is compared. Various attempts in the American law failed to solve the problems that originate with the dissolution of marriages and concubinates or to establish a just and equitable system. In the Netherlands attempts were made to solve problems with living-together relationships, especially between members of the same sex. The South African courts have solved these problems by application of the partnership principles on these relationships through recognition of the universal partnership and its use as a just and equitable remedy.
Open Access
Political Covenantalism, sovereignty and the obligatory nature of law: Ulrich Huber's discourse on state authority and democratic universalism
(Faculty of Law, University of the Free State, 2004) Raath, A. W. G.; Henning, J. J.
English: Ulrich Huber's De Jure Civitatis, published in Latin, has never been translated into any other language, making this a relatively unknown source in constitutional law. In this work Huber responds to the state absolutism of Machiavelli and Hobbes. Although Huber objects strongly to Hobbes's enlightened absolutism, his own theory of the double social contract scheme harbours distinct elements of political universalism.The possibilities for political resistance by subjects in the state are very limited. Although Huber's theory of constitutionalism prepared the way for the enlightened individualism in the theories of Locke and Rousseau, his constitutional law theory shows a clear preponderance towards political absolutism.