Browsing by Author "Bennett, T W"

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    The Natal and KwaZulu codes: The case for repeal
    (Juta Law, 2003) Bennett, T W; Pillay, A
    Since the new South African Constitution came into force, most of the discriminatory legislation of the colonial and apartheid eras has been repealed. The Natal Code of Zulu Law (Proc R151 of 1987) and the KwaZulu Act 16 of 1985 on the Code of Zulu Law are notable exceptions. Although particular sections of the Codes violate various provisions in the Bill of Rights, this article argues that the Codes should be repealed in their entirety on the ground that their very existence and their continuing application offend the right to equality in s 9 of the Constitution. The inquiry concentrates on the question whether the discriminatory nature of the Codes is nevertheless fair, and, if unfair, whether it may be justified under s 36 of the Constitution (the limitation clause). A factor considered in both the unfairness inquiry under s 9 and the justification inquiry under s 36 is the purpose of the Codes, both now and at the time of their inception. It is our view that possible arguments based on protection of the right to culture and legal certainty are unlikely to survive constitutional scrutiny, and, accordingly, the Codes should be repealed.
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    Society of Lloyd's v Price: Characterization and 'gap' in the Conflict of Laws
    (Juta Law, 2008) Bennett, T W; Kopke, K
    For connoisseurs of legal arcana, the case of Society of Lloyd's v Price; Society of Lloyd's v Lee 2006 (5) SA 393 (SCA) (hereafter Society of Lloyd's) has a special significance. Not only did it settle the question how best to characterize causes of action, but it also offered a solution for that curious problem of 'gap'. Both of these are issues arising out of conflicts of law. In itself the conflict of laws is an abstruse discipline, for it involves not simply the application of law to facts, but rather the application of a set of second-order choice-of-law rules which are designed to indicate what law should be applied to facts that happen to contain a foreign element. The Society of Lloyd’s case, however, took matters a stage further: the logic of the choice-of-law process drove the court to a point where it discovered that, in the circumstances of the case, no law was applicable. In conflict jargon, this conundrum is known as a problem of ‘gap’. (Its counterpart is ‘cumulation’, namely the simultaneous applicability of two or more laws.)
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    The Spoor Law: An Anachronism or Constitutional Misfit?
    (Juta Law, 2012) Bennett, T W; Jacobs, P J
    The spoor law is a rule of African customary law that determines liability for stock theft. It provides that, if the tracks of lost or stolen livestock can be traced to a homestead or its immediate surrounds, the head of that establishment will be held liable. If the direction of the spoor do not point to a specific homestead, all those in the vicinity become jointly liable. As a convenient deterrent to the theft of livestock, the spoor law was incorporated into the laws of the Cape Province, Natal and the Transkeian Territories at the end of the nineteenth century, making it the only rule of customary law to be applicable without regard to race prior to the new Constitution. This article questions whether the spoor law still is, and should be, part of South African law. It has never been formally repealed, and still survives in the 1983 Transkei Penal Code. Although the law has not been mentioned in a reported case for many years, it might play a valuable role in crime control, since stock theft remains a serious and pervasive crime in South Africa. The article argues, however, that it will probably not survive constitutional review, because it has the effect of imposing a reverse onus of proof.
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    The legal status of African women in Zimbabwe Rhodesia
    (1980) Bennett, T W
    This thesis arose out of a request by the Bishop of Mashonaland to investigate and report on the legal status of African women in Zimbabwe-Rhodesia. Superficially, such a task appeared to demand no more than a statement of customary law but it soon became apparent that far more than this was required if a full statement were to be given of the private law rights and duties of African women. In Zimbabwe-Rhodesia, Africans may be subject either to the common law or customary law and, accordingly, may bear rights and duties arising out of either system. One of the principal areas of difficulty lay in determining when one or other system of law applied. Even customary itself can no longer be regarded as a separate and distinct system. In the courts of district commissioners, the common law has had a profound influence on customary law and has succeeded in producing a new system of law which is a synthesis of customary and common law principles. This legal plurality is matched by a triadic court structure in Zimbabwe-Rhodesia. Depending on the court in which the case is heard, a different system of law may be applied. While the tribal courts apply a system of law based on traditional rules, responsive to the needs of each particular tribal community, the commissioners' courts will apply a system of customary law strongly influenced by the common law. Although the law applies in the distinct commissioners' courts is readily ascertainable, information regarding the law applicable in tribal courts is generally insufficient. The most comprehensive statement of Shona law was undertaken by Holleman in the 1950s. This work only relates to Hera and Mbire tribes. Child's work, although more recent, is a more limited compilation of legislation, court reports and his observations for tribal law. Bourdillon's ethnography of the Shona peoples is concerned with peripherally with the customary law. The first task was to accordingly to obtain the information on customary law, which might have changed since previous writers did their research or which might not have been specifically revised. A full statement of this protection (referred to in the text as the "Research Project"), the findings and the observations will be found in Appendix E to this thesis. What did emerge, in broad terms, was that while the tribal courts are aware of the problems presented by changes in the social position of women, their response was, by and large, conservative and hesitant. The district commissioners' courts have shown a far more lively interest in the challenge posed by social change. In many areas, they have attempted to modify and update the traditional rules of customary law. Yet, in this forum, there is a lack of direction in the overall development of the law. The full implications of legal change do not always appear to have been considered, and the courts have not adhered to a consistent policy. Nor should the courts bear full blame for the uncertainty which shrouds the law. District commissioners have been placed in a singular position whereby they are expected to create new law and reform customary law as the occasion warrants. This task 1s, more properly (at least in terms of the English conception of the judge's role), left to the legislature. Even in this regard, however, one is struck by the conflicts which arise between the provisions of various statutes applying either directly or indirectly to African women. It is apparent that the legislature has never, formally, applied its mind to the question of the African woman's status. African women (a sizeable proportion of the Zimbabwe-Rhodesian population) are subject to a traditional system of law which is ill-suited to their present way of life. Traditional customary law is a reflection of needs posed by the small-scale, peasant society, which was a feature of central and southern Africa in the nineteenth and earlier part of the twentieth century. This legal system was concerned with maintaining the integrity and well-being of the family and paid scant regard to the individual. An aspect of the traditional social structure was the special position afforded men, as persons of authority within the family; women did not enjoy the same privileges. The phenomenon of urbanisation (just use of the radical social changes to have swept Africa this century) has resulted in an erosion of the extended family and the emancipation of the individual. If we are to accept, as a fundamental value, the individual's right to enjoy the culture of his own choosing, we should be prepared to allow him a personal legal regime to match his life style. Yet African women, although they frequently participate in the Western European economy and live according to a similar life style, remain, in certain vital respects, subject to the traditional system of customary law. This type of thinking does not suggest that the individual may or should be permitted to determine each rule of law according to his or her own wishes. Obviously, the ultimate result of such an approach would be anarchic and, indeed, contrary to the very basis of a national legal system for, implicit in the very notion of "legal" rules, is the idea that individuals be bound to act in a certain manner regardless of their own wishes. This should not, however, obscure the rationale of this thesis. Here, it is proposed that the broadly conceived cultural preference of individuals should be taken into account in deciding which system of law should govern their behaviour. What is sought is a means of matching a system of law most suited to the individual's cultural predilections. If the present, overall legal order of Zimbabwe-Rhodesia is accepted as the framework within which changes must be effected, there are five principal methods of achieving legal reform. Each of these methods serves to exclude customary law in favour of the common law where this appears to be appropriate in terms of the individual's cultural preference. The problem posed is to find the most efficacious method of realising this aim.