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Item Open Access Sterility as a ground for nullifying the marriage: can Venter and Van Niekerk be reconciled?(Faculty of Law, University of the Free State, 2012) Forere, M.; Lotz, L.Abstract not availableItem Open Access Mortgage bonds and the right of access to adequate housing in South Africa: Gundwana v Stoke Development & Others 2011 (3) SA 608 (CC)(Faculty of Law, University of the Free State, 2012) Juma, L.English: This article offers a critique of Gundwana v Stoke Development & Others 2011 (3) SA 608 (CC), a case in which the Constitutional Court of South Africa found it to be unconstitutional for the registrar of a high court to declare immovable properties specially executable when ordering a default judgement, to the extent that such an order “permitted the sale and execution of a home of a person”. The Court interpreted the property clause in section 25, access to right to housing in section 26 of the Constitution, as mandating “further judicial oversight” in all cases where execution is levied against residential property. The article raises some of the shortcomings of this interpretive scheme and suggests that constitutional values, when used to curtail or enlarge obligations of parties to a mortgage bond, must take into account the general rights and duties which the parties assumed at the signing of the agreement; the circumstances of each of the parties at the time of execution and ascertained through a careful evaluation based on a clearly articulated set of principles, and the nature of constitutional rights themselves. The article argues that, whereas there may be circumstances in which a debtor may need protection, rather than impose a blanket abrogation of procedures allowing for expedient disposal of uncontested claims, the court should instead have considered the establishment of further procedural safeguards.Item Open Access Conceptualising the sexually explicit as free expression: the distinct legal and political challenges presented to a liberal feminist critique in a South African constitutional context(Faculty of Law, University of the Free State, 2012) Van der Poll, L.English: This article explores critically whether the liberal feminist understanding of women’s situation under conditions of patriarchy (in its critique of liberal philosophy) has the potential to uncover the complex nature of the (legal) harm inherent to gender-specific sexually explicit material. By virtue of the fact that liberal feminism has emerged from classical liberal theory, this school of feminism appears to struggle in balancing the interests of a free, equal and democratic society with the pressing interests of women to live in a society which is free from both direct and indirect gender-specific violence. Liberal feminism’s often uncritical acceptance of classical liberal principles would appear to render it virtually incapable of appreciating (female) sexuality as a social construct. And as a consequence, sexually explicit speech is not per se deemed sexist or harmful to women, because mere images are not understood to have the capacity to cause harm. Accordingly, to justify legal intervention, harm must either be imminent and directed against women specifically, or must constitute the advocacy of hatred that constitutes incitement to cause harm. Seen in this context, this article seeks to determine whether liberal feminism could conceptualise sexually explicit material as a violent mode of expression within a South African constitutional context.Item Open Access ‘To each a crumb of right, to neither the whole loaf’: the metaphor of the bread and the jurinomics of justice in African legal thought(Faculty of Law, University of the Free State, 2012) Idowu, W.English: The literature on the meaning of justice remains too Eurocentric without a modicum of space for what Africans hold to be an appropriate conception of justice. This article argues that while there exist scholarly interpretations and inspiring analyses on what may be tagged as African contributions to justice conception such as Desmond Tutu’s Ubuntu, Gluckman’s natural justice, missing in these array of fantastic, breathtaking and insightful definitions of justice in African jurisprudence is the essentially jurinomic dimension towards justice. This article discovers the task of jurinomics to consist in the study of the economic content, context, concepts, contour, characteristic and consequences of law, legal concepts and practice. This article further observes that justice is not just a moral and legal concept but also economic. Taking a cue from a ferreted interpretation of Teslim Elias’ popular proverb, and drawing insights from the African ideal of reconciliationism, the article underscores the view that justice concept in Africa could be appropriately understood, using the bread metaphor, to have a jurinomic character in the light of careful readings of notions such as each/neither, crumb, right, whole and loaf. This article concludes that in African jurisprudential thought and practice, welfarism constitute the basic push and pull of justice.Item Open Access Trade in services in the context of SADC-EU EPA: risks and opportunities(Faculty of Law, University of the Free State, 2012) Lehloenya, P. M.English: The desire by the EU to include trade in services as part of the ongoing EPA negotiations with SADC has brought into sharp focus the question as to whether such a move would be in the best interest of SADC. The significance of this question lies in the widely held belief among developing countries that opening up their service sectors to foreign competition while the sector remains poorly developed would harm their developmental prospects. This article examines the merits and weaknesses of this viewpoint, by highlighting the risks that often accompany liberalisation of services between two regions that are at different levels of development. It also draws attention to the growing importance of services in world trade and how they have become an indispensable component of economic growth in developing countries. The article concludes that an EPA is not the most appropriate mechanism for achieving equitable trade in services from a SADC perspective, given the adversarial nature of the negotiations that precede its conclusion. Furthermore, rather than support an all-encompassing process involving liberalisation of all the services sectors at one go, the article advocates a more gradual process involving liberalisation of a few strategic sectors at a time, which would focus within the region initially and only expand globally with time.