Faculty of Law

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The Faculty of Law's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law.

Electronic theses and dissertations are available in the Electronic Theses and Dissertations Repository.

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The death penalty in the Cape Provincial Division: 1986-1988
(South African Journal on Human Rights, 1989) Julia, Sloth-Nielsen; Christina, Murray
This article presents the data that we collected in four tables. These are explained in the first section below. The second part of the article examines three issues that emerge from the data. First, we note the disparity in the use of the death penalty by individual judges and argue that, in part at least, this must be attributed to the personal disposition of judges. Then we examine the figures relating to appeal procedures and conclude that the procedure should be reformed. Thirdly we comment on the reprieve process. The last section of the article suggests areas in which future research on the death penalty may fruitfully be conducted.
A comparative study of the South African and Islamic law of succession and matrimonial property with especial attention to the implications for the Muslim woman
(University of Western Cape, 1991) Moosa, Najma; de Villiers., F.A
As a Muslim south African trained in South African Roman-Dutch law, I have been exposed to experiences/situations which indicate a conflict between the principles of South African Roman-Dutch law and Islamic law of succession. This has prompted me to do some research into the history of Islamic law, the spreading of Islamic law over large parts of the world and the question of the recognition and application of Islamic law in South Africa. The central theme of this study is the Islamic law of succession in so far as it affects women. Chapter One of my dissertation contains a brief historical background which outlines on the one hand, the nomadic society, women and succession in pre-Islamic Arabia and on the other, their improved position upon the advent of Islam {seventh century) . It ends with the historical background of Muslims in South Africa. Chapter Two is devoted to the marriage property background against which both the South African and Islamic law of succession operate. Thereafter, in Chapter Three, the South African law and Islamic law (substantive rules} of succession are compared. These include both intestate and testamentary succession, the latter being limited on the Islamic side. Chapter Four, with the backgrounds sketched in Chapters Two and Three, demonstrates the visible internal conflicts between the Islamic and South African law of marriage and succession as encountered in South African practice. After evaluating statistics and alternative solutions in this regard, and having arrived at certain conclusions, I propose that recommendations about the possible recognition and application of Muslim Personal Law in South Africa which is at present enjoying the attention of the South African Law Commission in Project 59 should see fruition and be implemented as it can only assist the society in closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society. which we live since it is a vital aspect affecting our daily lives {and deaths!). Chapter Five covers the whole aspect of the Muslim testator or testatrix' s limited "freedom" of testation and reforms by certain forerunner countries in this regard which on closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society.
A comparative study of the South African and Islamic law of succession and matrimonial property with especial attention to the implication for the Muslim woman
(The University of the Western Cape, 1991) Moosa, Najma
As a Muslim south African trained in South African Roman-Dutch law, I have been exposed to experiences/situations which indicate a conflict between the principles of South African Roman-Dutch law and Islamic law of succession. This has prompted me to do some research into the history of Islamic law, the spreading of Islamic law over large parts of the world and the question of the recognition and application of Islamic law in South Africa. The central theme of this study is the Islamic law of succession in so far as it affects women. Chapter One of my dissertation contains a brief historical background which outlines on the one hand, the nomadic society, women and succession in pre-Islamic Arabia and on the other, their improved position upon the advent of Islam {seventh century) . It ends with the historical background of Muslims in South Africa. Chapter Two is devoted to the marriage property background against which both the South African and Islamic law of succession operate. Thereafter, in Chapter Three, the South African law and Islamic law (substantive rules} of succession are compared. These include both intestate and testamentary succession, the latter being limited on the Islamic side. Chapter Four, with the backgrounds sketched in Chapters Two and Three, demonstrates the visible internal conflicts between the Islamic and South African law of marriage and succession as encountered in South African practice. After evaluating statistics and alternative solutions in this regard, and having arrived at certain conclusions, I propose that recommendations about the possible recognition and application of Muslim Personal Law in South Africa which is at present enjoying the attention of the South African Law Commission in Project 59 should see fruition and be implemented as it can only assist the society in closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society. which we live since it is a vital aspect affecting our daily lives {and deaths!). Chapter Five covers the whole aspect of the Muslim testator or testatrix' s limited "freedom" of testation and reforms by certain forerunner countries in this regard which on closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society.
Natural fathers of extramarital children should have an inherent right of access to their children!
(University of the Western Cape, 1991) Amien, Waheeda; Sloth-Nielsan, Julia
The story which I am about to relate is a true one. However, to protect the privacy of the parties concerned, their names have been changed. I have a friend called Bob. Bob is the biological father of a five-year-old girl called Ethel. Avril is Ethel's mother. Five and a half years ago, Bob and Avril entered into a short sexual relation commonly known as a one-night stand. Eight months later and out of this brief encounter was produced a tiny baby girl which Avril claimed was Bob's child and which he unquestionably accepted. Bob thus acknowledged paternity of this child and formalised it by entering his name as the father on the birth register. He then proceeded to pay maintenance support every month without fail into Avril's bank account and continues to do so today. Bob also paid half of all Avril's lying-in expenses.
Democratising the employment relationship: a conceptual approach to labour law reform and its socio-economic implications
(Juta Law, 1993) Du Toit, Darcy
Introduction: The constitutional debate in South Africa has place the related issues of democracy and increase production and redistribution of wealth centrally on the agenda. Democratisation of the employment relationship, it will be argued, it is essential to both. At first sight there has been a certain meting of minds between employers and organised labour around this question. The demand for greater democracy in the workplace has been raised increasingly from the side of trade unions and the mass democracy movement in recent years while some employers have taken initiatives of their own to involve workers in decision-making.
The small business sector: deregulation or collective bargaining?
(Juta Law, 1993) Du Toit, Darcy
Introduction:'Abraham Adamson, owner of A&A Motor Spares in Athlone, Cape Town, was dealing with a client in June 1991 when the sheriff of the court walked in and seized 21 gearboxes and various other movable assets. His [Adamson's] crime was failing to pay two of his 14 employees the overtime rates stipulated by an industrial council which a few weeks earlier he never even knew existed. So begins one of numerous press reports in the last few years recording the burdens placed on small entrepreneurs by legal regulation in general and industrial councils in particular. A senior manager of the Small Business Development Corporation (SBDC) was reported as saying that 'he is aware of 10 cases in the Western Cape where businesses were liquidated by industrial councils over the last two years, generally for non-payment of levies'. Two comments by small employers, quoted in the same report, pithily express their viewpoint: 'Either I pay them [workers] below the minimum wage or I close my doors and they lose their jobs. They prefer to have their jobs.' 'They want to tell me when I can open and close my factory at Christmas. These people are killing employment. If I comply with these rules I will have to close down my company.
Statutory collective bargaining: a duty of fair representation?
(Juta Law, 1993) Du Toit, Darcy
Introduction:An issue that has received little attention in our law is the nature of a union's duty vis-à-vis its membership in the course of collective bargaining and the consequences of breach of such duty. This is, in the first instance, a practical question of law and industrial relations which may determine the enforceability of disputed collective agreements. Over and above this it is a question of democracy. Trade unions are widely regarded as a means whereby individually powerless employees can gain a degree of control over their working lives and moreover, in today's political climate, over socio-economic policy and labour legislation. But such control can only be meaningful if the union itself is subject to democratic control by its members.
The scientific career of the zoologist Max Wilhelm Carl Weber (1852—1937)
(Bijdragen tot de Dierkunde, 1993) Pieter, Florence F.J.M.; de Visser, Jaap
It is shown that the pinnacle of Max Weber’s scientific career was the organization and leadership of the Siboga Expedition to the former Netherlands East Indies (now Indonesia)in the years 1899—1900. Before that time, as Professor of both General and Special Zoology at the University of Amsterdam, he had devoted his research mainly to the anatomy of mammals, which resulted in the fundamental reference work Die Säugetiere published in first edition in 1904. Just before his departure with the Siboga Expedition Weber was appointed Extraordinary Professor of Special Zoology in Amsterdam. This gave him more time to edit the results of the Siboga Expedition and for taxonomic studies, especially on the fishes of the Indo- Australian Archipelago. Nevertheless he kept a keen interest in generalzoology, which resulted in his extensive contribution to the modern textbook Lehrbuch der Biologiefür Hochschulen co-authored by Moritz Nussbaum and Georg Karsten, published in first edition in 1911. Weber retired in 1921 and by the time he died in 1937 about 95% of the scientific results of the Siboga Expedition had been published - an outstanding achievement.
Workers in small business: the forgotten people
(Juta Law, 1994) Du Toit, Darcy
Introduction:The present-day concentration by government, private sector organizations and academics on the small and informal business sectors is undoubtedly a sign of the times. Until some 20 years ago small business attracted little attention, the term 'informal sector' had hardly been heard of. The limits to growth experienced in the industrialized countries from the mid-1970's onwards, however, and the deepening malaise of what had previously been regarded as the 'developing' world, brought about a sea-change in attitudes. It became obvious that corporate investment, local or foreign, was providing jobs for only a minute fraction of the destitute workseekers flooding third world cities. Even in the developed countries full employment was a thing of the past. In this climate policy-makers came to pin their hope on growth of the informal sector as a means of absorbing the millions of people whom the formal sector could not accommodate
An ill contractual wind blowing collective good? Collective representation in non-statutory bargaining and the limits of union authority
(Juta Law, 1994) Du Toit, Darcy
Induction:In the statutory arena one facet at least, the interaction between union and employer parties at industrial council level, is defined by the Labour Relations Act 28 of 1956 (LRA). The other crucial nexus, that between the union and its constituents, is not expressly defined but can be construed in the context of the statutory process. This may be one reason why the issue has given rise to relatively little litigation or debate. No comparable framework exists within which to situate non-statutory bargaining. Case law on the subject, though on the increase, is still meagre. Three such cases are reviewed below. All three turn on the question whether agreements (purportedly) entered into by union officials had in fact been authorized by members of the union and, hence, whether the agreements were valid. In all three cases the agreements were upheld though with little in the way of a common rationale to underpin future legal development. This article will argue that the key to the development of a coherent approach lies in a more consistent application of the principle of majoritarianism.
Women and the Islamic Law of Intestate Succession
(African Law Review, 1994) Moosa, Najma
Islamic law of succession consists of two parts mainly voluntary and compulsory. The voluntary part reers to the limited freedom of testation where a muslim can dispose of 1/3 of his or her assets via a will. Normally this 1/3 cannot be bequeathed to the compulsory (Quranic) heirs whose shares are fixed and determined by divine revelation. However, this general law is subject to exception in that it could take place if heirs consent thereto after the testator's death. It must be noted that there is no increase in testamentary freedom.
Corporatism and collective bargaining in a democratic South Africa
(Juta Law, 1995) Du Toit, Darcy
Introduction:The theme of 'emerging models of worker participation and representation' is uniquely appropriate in relation to South Africa today. In February 1995 a draft labour statute, designed to replace the existing Labour Relations Act and corresponding statutes applicable to the public, education and agricultural sectors, was published One of its more radical innovations is the proposal for a system of worker participation by means of elected bodies to be known as 'workplace forums'. The draft law has turned out to be controversial, and at the time of writing it is not clear what its fate will eventually be. Inter alia, the chapter on workplace forums has reportedly encountered opposition from trade unions as well as employers. Debate of this nature, however, is integral to the emergence of new industrial relations models. This article will attempt to evaluate the proposed system of worker participation and to explore some of its implications which may be of interest internationally. In particular, it will focus on the envisaged relationship between workplace forums and trade unions - a question that will be crucial to the success or failure of the project.
Arbeidsreg in 'n maatskaplike verband
(Juta Law, 1995) Du Toit, Darcy
Introduction: 'n Regsteksboek is nie bloot 'n uiteensetting van regs reels nie. Dit is, in die eerste plek, 'n seleksie van bespreekingspunte en, terselfdetyd, 'n evaluasie van die selekteerde gegewens wat uitgaan van 'n bepaalde referensiekader. Tog konfronteer die eindproduk die student as meer as net 'n boek. Dit word bestudeer (nie noodwendig onkrities nie) as 'n objektiewe verklaring van die onderwerp of, tenminste, van die "feite" wat jy moet ken om te slaag. Direk of indirek beinvloed so 'n boek, en dus die skrywer daarvan se uitgangspunte, die sienswyse waarmee groot getalle toekomstige regspraktisyns en -akademici die betrokke vakgebied sal begryp, die manier waarop hulle geneig sal wees om besondere reels te interpreteer en die doelstellings wat hulle daarmee identifiseer.
Small enterprises, Industrial Relations and the RDP
(Juta Law, 1995) Du Toit, Darcy
Introduction: The small, medium and micro enterprise (SMME) sector spans an immense sweep of economic activity, from entirely non-regulated to entirely regulated businesses, 'from the survivalist activities of informal sector hawkers to high-tech manufacturing enterprises employing fewer than 200 workers'. It comprises, in reality, a multitude of subsectors of different branches of the economy, each with its own specific issues, problems and potentialities. In addressing the issue of industrial relations, it will be neither appropriate nor fruitful to try to deal with this multifaceted 'sector' in its entirety. In the first place, most informal enterprises are conducted by single individuals, families or partnerships and do not involve employment relationships in the normal meaning of the term. In the second place, much informal activity is conducted by unemployed persons seeking merely to maintain themselves until jobs become available. Such enterprises are transient and difficult to target or track for purposes of industrial relations policy. Thirdly, structured collective labour relations as we know them are in many respects premised on the realities of larger workplaces and may be less appropriate to workplaces employing only one, two or a handful of people.
Muslim Personal Law - to be or not to be?
(Juta Law, 1995) Moosa, Najma
Introduction: The first Muslims had arrived at the Cape from the Dutch colonies in the East Indies (now Indonesia) and the coastal regions of Southern India from anywhere around 1652-1658. Despite having been granted the freedom to practise their religion since 1804, Muslims could not give legal effect to their personal laws for three hundred years as social restrictions and political inequalities prevailed until recently. It is anticipated that the rapid changes taking place in South Africa since the democratic elections of 1994 will rectify this situation expeditiously.
Juvenile justice review 1994-1995
(South African Journal of Criminal Justice, 1995) Julia, Sloth-Nielsen
This review of the state of juvenile justice in South Africa introduces a new section to this journal in which annual developments relating to law and policy in the field of juvenile justice will be examined. Juvenile justice has long been a Cinderella topic in the South African legal and academic arena. Legislation relating to juvenile justice is spread out in various sections in the Criminal Procedure Act 1977, the Child Care Act, and the Correctional Services Act. No textbook for those practitioners concerned with juvenile justice has yet been published, and journal articles on aspects relating to juveniles in trouble with the law are sporadic. However, juvenile justice issues have for some years been the focus of media attention. Activists have drawn attention to the plight of children detained in prisons and police cells in particular. At an international seminar hosted by the Community Law Centre in 1993, the matter of comprehensive and radical legislative reform was mooted (see Report of the International Seminar on 'Children in Trouble with the Law', Community Law Centre, 1995). An outcome of the conference was the establishment of a drafting team, which set to work to produce innovative proposals for a new juvenile justice system. Published in November 1994 by the Drafting Consultancy as 'Juvenile Justice for South Africa: Proposals for Policy and Legislative Change' (discussed in D Pinnock, A Skelton, R Shapiro (1994) 3 SACJ 338-347), the document has inspired much of the current debate about legislative and policy reform for juveniles who come into conflict with the law.
Shari'a in South Africa
(Aboriginal Law Bulletin, 1995) Moosa, Najma
Muslim Personal Law (MPL) is often practised to the detriment of Muslim women in many countries. The Qur'an is a religious text considered by Muslims to be the literal word of God. It is a primary source of Islamic law and contains approximately 80 verses dealing with legal matters, most of which pertain to personal laws of family and inheritance. It is in the areas explicitly referred to by these verses that one finds little or no change in various Muslim countries. The term MPL has been coined by various Muslim countries and jurists because it pertains to, among other subjects, marriage, divorce, inheritance, polygyny, custody and guardianship which fall under the category of family law. Moreover, it is interesting to note that all laws affecting the status of Muslim women have historically been relegated to MPL (private sphere) The Qur'an is separated from the classical formulation of Islamic law or Shari'a by a process of legal development lasting more than two centuries. During this period the Qur'anic norms underwent considerable dilution, often to the detriment of women. It is common for Islamic law, which is the interpretation and application of the primary sources by early Muslims, to be mistaken for Islam itself.
The interim Constitution and Muslim personal law”
(Cape Town Community Law Centre, 1995) Moosa, Najma
Muslim women face the same status problems in the private and public spheres of life as their non-muslim counterparts but it is alleged that, as members of a particular religious community, they experience another inequality. To assess this assertion, it is necessary to consider how gender issues are dealt with not only in Islamic law, but also in the light of the authentic spirit of the Koran. With an eye to how South Africa's final constitution might address the status of Muslim personal law and the related question of the position of Muslim women, this chapter examines the issue of Muslim Personal Law in South Africa and the constitutional provisions relating to the rights of women in a number of Muslim countries.
An Analysis of the Human Rights and Gender consequences of the New South African Constitution and Bill of Rights with regards to the recognition and implementation of Muslim Personal Law
(The University of the Western Cape, 1996) Moosa, Najma
Prior to the new constitutional dispensation in South Africa all women had identities of race and gender imposed on them. With a new dispensation in place Muslim women, however, still have to deal with identities attributed to them by religion and culture. The author of this dissertation is herself a Muslim woman who has struggled to reconcile her public life and "new found" equality with these identities. She found it difficult to believe that Islam, the self same religion which had brought seventh-century Arabian society out of its degenerating stupor, could be used to justify behaviour by conservative religious authorities ( Ulama) in South Africa which deny women equality. Earlier research partly allayed her suspicions and fears but did not lay them to rest completely. The fact that South Africa was to face a human rights revolution which would ultimately affect the lives of all her citizens for the better, sparked off a desire within the author to establish whether it is not possible to reconcile the undeniable and unalterable spirit of equality within Islam with the implementation of a reformed Muslim Personal Law (MPL) so that women can enjoy the best of both worlds.
Juvenile justice review 1996
(South African Journal of Criminal Justice, 1996) Julia, Sloth-Nielsen
This review follows the 1995 review, the first in this journal, and similarly reviews the period until 30 September 1996. In the year presently under review the principle focus of juvenile justice concern was yet again the matter of pre-trial detention of arrested juveniles. The question as to where juveniles should be held pending finalization of criminal trials was the subject-matter of legislative reform in May 1996, when the Correctional Services Amendment Act 14 of 1996 was promulgated with immediate effect. The genesis and intended purport of this amendment is described in J Sloth Nielsen 'Pre-trial detention of children revisited: amending section 29 of the Correctional Services Act' (1996) 9 SACJ60. The content of the legislation allowing selected children to be incarcerated pending criminal trial will therefore not be raised again, but new practical and textual problems that have arisen with the implementation of the new section since May 1996 will be discussed.

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