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Throughout the past 50 years, the courts have been a battleground for contesting political forces as more and more conflicts that were once fought in Parliament or in streets, or through strikes and media campaigns, find their way to the judiciary.
Certainly, the legal system was used by both the apartheid state and its opponents. But it is in the post-apartheid era, and in particular under the rule of President Jacob Zuma, that we have witnessed a dramatic increase in ‘lawfare’: the migration of politics to the courts.
The authors show through a series of case studies how just about every aspect of political life ends up in court: the arms deal, the demise of the Scorpions, the Cabinet reshuffle, the expulsion of the EFF from Parliament, the nuclear procurement process, the Cape Town mayor…
The Land Is Ours tells the story of South Africa’s first black lawyers, who operated in the late nineteenth and early twentieth centuries. In an age of aggressive colonial expansion, land dispossession and forced labour, these men believed in a constitutional system that respected individual rights and freedoms, and they used the law as an instrument against injustice.
The book follows the lives, ideas and careers of Henry Sylvester Williams, Alfred Mangena, Richard Msimang, Pixley ka Isaka Seme, Ngcubu Poswayo and George Montsioa, who were all members of the ANC. It analyses the legal cases they took on, explores how they reconciled the law with the political upheavals of the day, and considers how they sustained their fidelity to the law when legal victories were undermined by politics.
The Land Is Ours shows that these lawyers developed the concept of a Bill of Rights, which is now an international norm. The book is particularly relevant in light of current calls to scrap the Constitution and its protections of individual rights: it clearly demonstrates that, from the beginning, the struggle for freedom was based on the idea of the rule of law.
In Rule Of Law, Glynnis Breytenbach reflects back on her career as a prosecutor, including specific cases she has tried, and on her life to provide a fascinating commentary on the importance of the independence of judicial institutions and the precariousness of this independence.
Her current challenges are directly linked to how outspoken she is and how she continues to campaign fiercely for the rule of law in this country.
Wilfrid Cooper was a rare man during the dark days of apartheid: an advocate whose career coincided almost perfectly with the rise and fall of the Nationalist government, intersecting eerily with that of its “architect” HF Verwoerd, and yet a man whose enlightened principles and liberal thinking saw him regularly defending those less fortunate.
His storied legal career saw him embroiled in numerous political affairs throughout the 1960s, ’70s and ’80s. He represented, among others, Verwoerd’s assassin Dimitri Tsafendas; the SWAPO Six in Swakopmund; the families of Imam Abdullah Haron, Mapetla Mohapi and Hoossen Haffajee and others who died “jumping down stairwells while in detention” or hanged by their own jeans in their cells; and Steven Biko and other activists who were arrested by the security police in the dead of night. There were also the highprofile criminal cases, including the original Kebble-style “assisted suicide” of Baron Dieter van Schauroth and the scandalous case of the Scissors Murderess Marlene Lehnberg.
Wilfrid Cooper reached the peak of his considerable legal prowess in a time when South Africans led a parallel existence, the majority downtrodden while white privilege reigned serenely in the suburbs – a time that could have easily provided him a less controversial career had he desired. And yet even as he and his gregarious wife Gertrude enjoyed wonderful and very sociable years in their Newlands home in Cape Town – an area that was itself remodelled under the Group Areas Act – he chose to walk the path less taken in the shadow of Devil’s Peak. This is his story.
Introduction to law and legal skills introduces LLB students to legal history and basic frameworks and concepts in a graduated, applied and engaging way. The core focus of this text is its innovative educational and learning-developed approach, which helps teach students how to think as lawyers. Knowledge of theory and concept is reinforced through applied, practical exercises which support comprehension. This integrated approach furthers understanding to build and develop independent academic skills. In particular, the text encourages the development of language skills, critical and independent thinking, and legal research skills.
Law as a profession was not Dikgang Moseneke’s first choice. As a small boy he told his aunt that he wanted to be a traffic officer, but life had other plans for him. At the young age of 15, he was imprisoned for participating in anti-apartheid activities. During his ten years of incarceration, he completed his schooling by correspondence and earned two university degrees. Afterwards he studied law at the University of South Africa.
Practising law during apartheid South Africa brought with it unique challenges, especially to professionals of colour, within a fraught political climate. After some years in general legal practice and at the Bar, and a brief segue into business, Moseneke was persuaded that he would best serve the country’s young democracy by taking judicial office. All Rise covers his years on the bench, with particular focus on his 15-year term as a judge at South Africa’s apex court, the Constitutional Court, including as the deputy chief justice. As a member of the team that drafted the interim Constitution, Moseneke was well placed to become one of the guardians of its final form. His insights into the Constitutional Court’s structure, the values it embodies and the cases that were brought to it make for fascinating reading.
All Rise offers a unique, insider’s view of how the judicial system operates at its best and how it responds when it is under fire. From the Constitutional Court of Arthur Chaskalson to the Mogoeng Mogoeng era, Moseneke’s understated but astute commentary is a reflection on the country’s ongoing but not altogether comfortable journey to a better life for all.
Regsalmanak: 100 stories uit ons regserfenis is ’n keur uit die rubriek Regsalmanak wat Gustaf Pienaar sedert 2012 op gereelde grondslag vir LitNet lewer. Die 12 hoofstukke se titels is die 12 maande van die jaar, en elke maand het datumverwante verhale, telkens met ’n regsinhoud. Pienaar put uit gepubliseerde hofverslae vir hierdie vermaaklike dog leersame verhale.
Regter Burton Fourie, wat die voorwoord tot die boek skryf, beskryf Regsalmanak as volg: “Vir almal – jonk en oud – behoort hierdie publikasie van groot waarde te wees, veral om die implementering van regsbeginsels op praktiese vlak te ervaar. In hierdie opsig is die skrywer werklik ’n meester. Regsbeginsels word deur die gebruik van keurige Afrikaans verduidelik en toegepas. Daardeur word soms ingewikkelde regsbegrippe vir almal toeganklik gemaak. Derhalwe is die werk ’n hoogs genotvolle reis deur ons regsgeskiedenis.”
Harassment in the workplace: Law, policies and processes is an update and expansion of Sexual harassment in the workplace: Law, policies and processes (2005), which dealt exclusively with sexual harassment. This title now includes other forms of harassment like racial discrimination and workplace bullying. The work will create insight into what constitutes harassment and will also facilitate an understanding of the liability of the employer, how to manage harassment, how to mediate as well as how to deal with the issue of damages and compensation.
This brand new edition, redesigned in hardback for 2019, is the perfect gift for lawyers, armchair detectives and true crime aficionados everywhere.
A rollicking collection of barely believable stories from five centuries of legal history - you'll be gripped by these tales of murder, intrigue, crime, punishment and the pursuit of justice. Meet the only dead parrot ever to give evidence in a court of law, the doctor with the worst bedside manner of all time, the murderess who collected money from her mummified victim for 21 years, and explore one of the most indigestible dilemmas - if you'd been shipwrecked 2,000 miles from home, would you have eaten Parker the cabin boy? The tales within these pages are bizarre, fascinating, hilarious and, most importantly, true.
This humorous collection of stories from life at the Bar and on the Bench in the Cape takes a look back at four decades, starting at the end of World War Two and finishing with the arrival of democracy in South Africa.
These tales and recollections, mostly from Bar members now in their 80s, show what an extraordinary time it was for lawyers. Also, remarkably, how much is of relevance to lawyers practising today.
The anecdotes and reminiscences of members of the Bar during this period were collected and edited by Mr Justice Gerald Friedman and Jeremy Gauntlett SC.
When a three-year-old child was found with a head wound and other injuries, it looked like an open-and-shut case of second-degree murder. Psychologist and attorney Susan Vinocour agreed to evaluate the defendant, the child's mentally ill and impoverished grandmother, to determine whether she was competent to stand trial. Even if she had caused the child's death, had she realized at the time that her actions were wrong or was she legally "insane"? What followed was anything but an open-and-shut case. Nobody's Child traces the legal definition of "insanity" back to its inception in Victorian Britain nearly two hundred years ago, from when our understanding of the human mind was in its infancy, to today, when questions of race, class, and ability so often determine who is legally "insane" and who is criminally guilty. Vinocour explains how "competency" and "insanity" are creatures of a legal system, not of psychiatric reality, and how, in criminal law, the insanity defense has to often been a luxury of the rich and white. Nobody's Child is a profoundly dignified portrait of injustice in America and a complex examination of the troubling intersection of mental health and the law. When prisons are now the largest institutions for the mentally ill, Vinocour demands that we reckon with our conceptions of "insanity" with clarity, empathy, and responsibility.
In "Signposts," Sally E. Hadden and Patricia Hagler Minter have
assembled seventeen essays, by both established and rising
scholars, that showcase new directions in southern legal history
across a wide range of topics, time periods, and locales. The
essays will inspire today's scholars to dig even more deeply into
the southern legal heritage, in much the same way that David
Bodenhamer and James Ely's seminal 1984 work, "Ambivalent Legacy,"
inspired an earlier generation to take up the study of southern
History has largely forgotten the writings, both public and private, of early nineteenth-century America's legal scholars. However, Ellen Holmes Pearson argues that the observers from this era had a unique perspective on the young nation and the directions in which its legal culture might go.
"Remaking Custom" draws on the law lectures, treatises, speeches, and papers of the early republic's legal scholars to examine the critical role that they played in the formation of American identities. As intermediaries between the founders of America's newly independent polities and the next generation of legal practitioners and political leaders, the nation's law educators expressed pride in the retention of the "republican parts" of England's common law while at the same time identifying some of the central features that distinguished American law from that of Britain. From their perspective, the new nation's blending of tradition and innovation produced a superior national character.
Because American law educators interpreted both local and national legal trends, "Remaking Custom" reveals how national identities developed through Americans' articulation of their local customs and identities. Pearson examines the innovations that legists could celebrate, such as constitutional changes that placed the people at the center of their governments and more egalitarian property laws that accompanied America's abundant supply of land. The book also deals with innovations that presented uncomfortable challenges to law educators as they sought creative ways to justify the legal cultures that grew up around slavery and Anglo-Americans' hunger for land occupied by Native Americans.
In "Contract and Consent, " the renowned legal historian J. R. Pole posits that legal history has become highly specialized, while mainstream political and social historians frequently ignore cases that figure prominently in the legal literature. Pole makes a start at remedying the situation with a series of essays that reintegrate legal with political and social history. A central theme of the essays is the link between Anglo-American common law and contract law and American political and constitutional principles. Pole also emphasizes the political functions of legal institutions in English and American history, going so far as to suggest that we need to divest ourselves of any notion of the separation of powers. Instead, we need to acknowledge the historical role of courts, juries, and the common law as agencies of political representation and as promulgators of law and policy.
Other essays show the implications of independence for American law, and how American political scientists converted the concept of sovereignty from its authoritarian claims in the eighteenth century into a product of the political process in the nineteenth and twentieth centuries. Although the American colonies made their own versions of the common law, there was no simple division between "English" and "American" law. But it was of fundamental importance that an entitled, landed aristocracy was never imported into or allowed to take root in America, with the result that American law was much simpler than its English counterpart, with the latter's accretion of esoteric language and procedures.
Having established the basis of Anglo-American legal history in contract and common law in part one, in the second half of the volume Pole explores various constitutional and legal themes, from bicameralism in Britain and America and the role of the Constitution in the making of American nationality to the performance of representative institutions in the century following the American Revolution.
This magisterial study, ten years in the making by one of the field's most distinguished historians, will be the first to explore the impact fugitive slaves had on the politics of the critical decade leading up to the Civil War. Through the close reading of diverse sources ranging from government documents to personal accounts, Richard J. M. Blackett traces the decisions of slaves to escape, the actions of those who assisted them, the many ways black communities responded to the capture of fugitive slaves, and how local laws either buttressed or undermined enforcement of the federal law. Every effort to enforce the law in northern communities produced levels of subversion that generated national debate so much so that, on the eve of secession, many in the South, looking back on the decade, could argue that the law had been effectively subverted by those individuals and states who assisted fleeing slaves.
In 1992, three hundred innocent Haitian men, women, and children who had qualified for political asylum in the United States were detained at Guantanamo Bay, Cuba -- and told they might never be freed. Charismatic democracy activist Yvonne Pascal and her fellow refugees had no contact with the outside world, no lawyers, and no hope . . . until a group of inspired Yale Law School students vowed to free them.
Pitting the students and their untested professor Harold Koh against Kenneth Starr, the Justice Department, the Pentagon, and Presidents George H. W. Bush and Bill Clinton, this real-life legal thriller takes the reader from the halls of Yale and the federal courts of New York to the slums of Port-au-Prince and the windswept hills of Guantanamo Bay and ultimately to the U.S. Supreme Court. Written with grace and passion, "Storming the Court" captures the emotional highs and despairing lows of a legal education like no other -- a high-stakes courtroom campaign against the White House in the name of the greatest of American values: freedom.
Recovering the history of an often-ignored landmark Supreme Court case, William P. Hustwit assesses the significant role that Alexander v. Holmes (1969) played in integrating the South's public schools. Although Brown v. Board of Education has rightly received the lion's share of historical analysis, its ambiguous language for implementation led to more than a decade of delays and resistance by local and state governments. Alexander v. Holmes required ""integration now,"" and less than a year later, thousands of children were attending integrated schools. Hustwit traces the progression of the Alexander case to show how grassroots activists in Mississippi operated hand in glove with lawyers and judges involved in the litigation. By combining a narrative of the larger legal battle surrounding the case and the story of the local activists who pressed for change, Hustwit offers an innovative, well-researched account of a definitive legal decision that reaches from the cotton fields of Holmes County to the chambers of the Supreme Court in Washington.
Presidents shape not only the course of history but also how Americans remember and retell that history. From the Oval Office they instruct us what to respect and what to reject in our past. They regale us with stories about who we are as a people, and tell us whom in the pantheon of greats we should revere and whom we should revile. The president of the United States, in short, is not just the nation's chief legislator, the head of a political party, or the commander in chief of the armed forces, but also, crucially, the nation's historian in chief. In this engaging and insightful volume, Seth Cotlar and Richard Ellis bring together top historians and political scientists to explore how eleven American presidents deployed their power to shape the nation's collective memory and its political future. Contending that the nation's historians in chief should be evaluated not only on the basis of how effective they are in persuading others, Historian in Chief argues they should also be judged on the veracity of the history they tell.
What is the nature of law as a form of social order? What bearing do values like justice, human rights, and the rule of law have on law? Which values should law serve, and what limits must it respect in serving them? Are we always morally bound to obey the law? What are the philosophical problems that arise in specific areas of law, from criminal and tort law to contract law and public international law? The book provides an accessible, comprehensive, and high quality introduction to the major themes of legal philosophy written by a stellar international cast of contributors, including John Finnis, Martha Nussaum, Fred Schauer, Onora O'Neill and Antony Duff. The volume is an exceptional teaching tool that provides a critical introduction to cutting-edge work in the philosophy of law.
In this innovative legal history of economic life in the Western Indian Ocean, Bishara examines the transformations of Islamic law and Islamicate commercial practices during the emergence of modern capitalism in the region. In this time of expanding commercial activity, a melange of Arab, Indian, Swahili and Baloch merchants, planters, jurists, judges, soldiers and seamen forged the frontiers of a shared world. The interlinked worlds of trade and politics that these actors created, the shared commercial grammars and institutions that they developed and the spatial and socio-economic mobilities they engaged in endured until at least the middle of the twentieth century. This major study examines the Indian Ocean from Oman to India and East Africa over an extended period of time, drawing together the histories of commerce, law and empire in a sophisticated, original and richly textured history of capitalism in the Islamic world.
Legal luminaries from around the world met at South Africa’s Constitutional Court to discuss the judiciary’s influence in effecting societal change, its relationship with the state and the marginalized and its role in breathing life into the rights to equality, free speech and life. Seminal human rights court cases that retain their relevance despite the passage of time, served as catalysts for reflection, recollection and discussion by some of the world’s leading jurists.
The first-hand accounts of some of those who had been involved in these cases lend poignancy and provide a unique insight into cases that have shaped human rights law.
This book presents fresh and inspiring perspectives on the canon of human rights law. The discussions – lively, engaging, responsive and open-ended – place cases in context while mapping their trajectories in society and across boundaries.
Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government explores the fundamental bases for the legitimacy of the modern administrative state. While some have argued that modern administrative states are a threat to liberty and at war with democratic governance, Jerry L. Mashaw demonstrates that in fact reasoned administration is more respectful of rights and equal citizenship and truer to democratic values than lawmaking by either courts or legislatures. His account features the law's demand for reason giving and reasonableness as the crucial criterion for the legality of administrative action. In an argument combining history, sociology, political theory and law, this book demonstrates how administrative law's demand for reasoned administration structures administrative decision-making, empowers actors within and outside the government, and supports a complex vision of democratic self-rule.
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