Perspectives on Law from South Africa and Beyond: Future, Present and Past

 

Series: Perspectives on Law from South Africa and Beyond: Future, Present and Past
Series editors: Prof Geo Quinot & Prof Nicola Smit
Volume 1: Law, Justice and Transformation
Volume editor: Prof Zsa-Zsa Boggenpoel
Publisher: LexisNexis

The first edition of a new series titled “Perspectives on Law from South Africa and Beyond: Future, Present and Past,” published by the SU Faculty of Law, is now available. The volume, edited by SU’s Prof Zsa-Zsa Boggenpoel, engages with difficult questions about the role of law in ensuring justice, and whether transformation, which can be perceived as an elusive term, is something that can genuinely be achieved through law. The volume argues that despite the ambitious ideals embodied in the South African Constitution, we are largely still fighting the after-effects of a colonial and/or apartheid system that has ensured a legacy of oppression, inequality, injustice, poverty and marginalisation. In this regard, the past is undeniably lingering in the present, and it inevitably will impact dramatically on the future. The contributing authors thus collectively look back critically in order to look forward. More specifically, the hope is to shed some light on potential issues that still exist in South African law that make the quest for justice and transformation difficult to achieve. When providing some insights into how South African law can develop in future in line with imperatives like justice and transformation, authors engage critically with challenges and missed opportunities that stand in the way of much-needed justice and transformation.

 

Volume 1: Law, Justice and Transformation

1. Law, justice and transformation: Looking back to move forward
Boggenpoel, ZT
2. The latest salvo in the ongoing battle between legal certainty and Contractual equity: Has the Constitutional Court really, and finally, closed the door on the development of a more robust role for good faith in contracting?
Louw, A
3. Access to justice through class action: The South African case
Broodryk, T
4. The proliferation of criminal gang activities in the Cape Flats and the subsequent legislative and policy responses
Van der Linde, D
5. Some thoughts on the compulsory sequestration applications and orders in terms of the Insolvency Act 24 of 1936 in light of recent judgments in the VBS matter: Was justice done?
Mthelebofu, K
6. Transforming the South African law faculty: Decolonialisation as a guiding principle
Cupido, RV and Slade, BV
7. Making social justice real: Reflections on constitutional fidelity regarding the social justice commitment and achievement of equality in the transformation of the judicial system
Madonsela, T
8. The transformation of traditional courts in South Africa: Fact or fiction?
Johnson, E
9. Living in the shadow of apartheid: The continued struggle for tenure security in former national states and self-governing territories
Pienaar, JM
10. Private power, socio-economic transformation, and the Bill of Rights
Liebenberg, S and Kolabhai, RL

 

List of contributors

ZT Boggenpoel, Professor, Faculty of Law, Stellenbosch University
A Louw, Associate Professor, Faculty of Law, Stellenbosch University
T Broodryk, Associate Professor, Faculty of Law, Stellenbosch University
DC van der Linde, Senior Lecturer, Faculty of Law, Stellenbosch University
KM Mthelebofu, Lecturer, Faculty of Law, Stellenbosch University
RV Cupido, Lecturer, Faculty of Law, University of Cape Town
BV Slade, Associate Professor, Faculty of Law, Stellenbosch University
TN Madonsela, Professor, Faculty of Law, Stellenbosch University
E Johnson, Lecturer, Faculty of Law, Stellenbosch University
JM Pienaar, Professor, Faculty of Law, Stellenbosch University
S Liebenberg, Distinguished Professor, Faculty of Law, Stellenbosch University
RL Kolabhai, Lecturer, Faculty of Law, North-West University

 

About the series

In 2021, the Law Faculty at Stellenbosch University celebrated its centenary. This milestone created an opportunity for reflection, which included reflection on legal scholarship. As is the nature of reflection at such moments, the Faculty called to mind the significant contributions made to legal scholarship by members and graduates of the Faculty over the course of a hundred years. From that history, it is apparent that the Faculty has had a strong focus on research and scholarship in law from its earliest days. A quick stock-take of current research endeavours confirmed that that focus on scholarship remained deeply imbedded in the Faculty. One can thus confidently state that the tradition of legal scholarship remained strong in Stellenbosch. However, these reflections on the past and present, brought the future in stark focus. The Faculty consequently started asking itself, what does the future hold for legal scholarship? What are the urgent and emergent issues that legal scholarship should be focusing on in South Africa? How should legal scholars be approaching these questions? In what way could the Stellenbosch Law Faculty contribute to engaging with these issues?

This series is the outcome of the reflections described above. The Faculty decided it may be helpful to launch an open-ended series of edited volumes committed to exploring key themes in legal scholarship that require critical attention. The aim is not to create an encyclopaedia of South African law or of distinct fields of law or to create a collection of books that would each zoom in on a distinct, established field of law and engage with challenges within that field. There are fine examples of individual books, journals and series that already fulfil these important functions in South African legal scholarship. What this series wants to create is a platform to explore key themes relevant to, impacting on and being impacted by law across many different fields. This purpose includes an interest in identifying those themes. That is, what are the important challenges that legal scholarship across the board will have to grapple with in the immediate, medium- and long term? To use a phrase that has become popular in planning and policy circles; what are the wicked problems that law will have to engage with and that legal scholarship will thus have to explore in the pursuit of a society as envisaged in our Constitution of 1996? While collective reflections in the Faculty identified a number of such themes that informed the first few volumes in the series, the best way to respond to a volatile and rapidly changing environment is to keep the series open-ended. That is, by conceptualising this research and publication project as an ongoing one, the Faculty can explicitly challenge South African legal scholarship on a continuous basis to think beyond the narrow confines of particular areas of law and even beyond the confines of the discipline of law itself. In this way, the Faculty can prod legal scholars to think about cross-cutting themes without claiming that the Faculty knows what those are.

The Faculty believes that there is a need for legal scholarship to engage with so-called wicked problems in more comprehensive, and cross-cutting ways than is traditionally evident in field-specific publications and that South African legal scholarship will benefit if such themes are dealt with as the topic of a distinct publication (that is, as a volume in the series) from the perspective of multiple fields of law, rather than just as minor sections hidden in field-specific publications. Along this route, important linkages can be identified between distinct branches of law in their treatment of these themes that may otherwise not be readily apparent. Such linkages can, for example, enhance consistent and coherent legal responses to an issue across fields, or can identify tensions within the legal system, pointing to conflicting underlying values that are triggered by legal responses to an issue. Such integrated engagements with themes may also greatly assist us in our legal conceptualisation of the issues at stake, which in turn may suggest how best to approach the positive legal treatment of the area. The Faculty also believes that this approach may help gauge the magnitude and importance of the relevant theme for law and legal scholarship as a whole, which may, again, not be apparent when the theme is dealt with in bite-size chunks across various field-specific works.

As with the reflection that gave birth to the series, the Faculty thought it important to deliberately seek a balance between future, present and past within each volume of the series, especially given the goal of looking to the future. Legal scholarship tends to focus primarily on the present and the past. The typical objective is to engage with the law’s current treatment of a particular social issue. The methodology used in such engagement relies heavily on the past – preceding case law, legislative provisions and principles that have developed over time. The future undoubtedly plays an important role in such engagement. The scholarship is often concerned with predicting how the next occurrence of the issue will be dealt with in law, but the bulk of the scholarship typically focuses on the present and the past. In this series, the Faculty wants to shift the focus more squarely to the future. It found inspiration in this respect in futures studies, where, as Dr Morné Mostert of SU’s Institute for Futures Research explains, a “20-30-50 principle” is applied that suggests that in seeking to explore possible futures, one should spend 20% of one’s time on the past, 30% on the present and 50% on the future. While the Faculty explicitly wanted to direct attention in this project to the future, it thinks that this can only sensibly be done by taking account of the historical development that shaped current legal perspectives. With this series the Faculty thus wants to nudge local legal scholarship to embrace future thinking alongside other familiar modalities of thinking in law, such as analytical thinking and (to a lesser extent) systems thinking. As Mostert explains, future thinking involves “a concern not for past performance or present detail, but for the nature and opportunities presented in a time yet to come”.

The series is deliberately a modest project in the complexity-theory meaning of that word. The Faculty is not aiming to offer answers or solutions to any of the issues explored in this series. These are merely some perspectives and there are necessarily many more. Despite these inherent constraints, the Faculty is confident that the responsible modesty of this project is one of its strengths. It serves the deliberate open-endedness of the project and, using Paul Cilliers’ words, it invites the continued “process of generating understanding”, which, in the Faculty’s view, is the hallmark of good legal scholarship.