Legal ethics and the lawyer-client relationship in South Africa: a proposal for reform using local values
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Legal ethics , Lawyers South Africa , Attorney and client South Africa , Ubuntu (Philosophy) , Constitutionalism , Justice , Decision making
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262 , DOI 10.21504/10962/192765
- Description: This thesis develops an approach to ethical decision-making for legal practitioners in South Africa that, it is argued, meets the ends and values of its relatively new constitutional democracy. The thesis starts by identifying that neutral partisanship was, and continues to be, the prevailing conception of role for legal practitioners in South Africa. The study focuses on how this approach is problematic for a number of reasons, the most important of which are: (1) because neutral partisanship allows lawyers to become ethically disengaged, and (2) the approach does not fit with the values of South Africa’s Constitution. The study proceeds to consider alternatives to the neutral partisanship model, analysing their underlying premises and ‘fit’ with the South African context. The study argues that the work of William Simon, a US scholar, is the most suitable approach to adopt in South Africa. This is because of its emphasis on the need for legal practitioners to exercise discretion in ethical decision-making, to take responsibility for their actions, and ultimately to seek justice as understood within the legal system in which they operate. The study then shifts to a consideration of how Simon’s approach needs to be contextualised given that it has been developed from a western/Global North perspective. To do this, I consider the content of the indigenous value of Ubuntu and its incorporation into the South African legal system. I then consider how Ubuntu could assist in the development of legal practitioners’ understanding, purpose and execution of their duties within a transformative constitutional democracy. In doing this, I develop inward- and outward-looking factors based on traditional and constitutional values directing legal practitioners in their ethical decision-making. Finally, the study closes with a consideration of how the approach can be institutionalised. The study proposes certain ways in which code regulation and education can support the success of the approach. , Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Legal ethics , Lawyers South Africa , Attorney and client South Africa , Ubuntu (Philosophy) , Constitutionalism , Justice , Decision making
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262 , DOI 10.21504/10962/192765
- Description: This thesis develops an approach to ethical decision-making for legal practitioners in South Africa that, it is argued, meets the ends and values of its relatively new constitutional democracy. The thesis starts by identifying that neutral partisanship was, and continues to be, the prevailing conception of role for legal practitioners in South Africa. The study focuses on how this approach is problematic for a number of reasons, the most important of which are: (1) because neutral partisanship allows lawyers to become ethically disengaged, and (2) the approach does not fit with the values of South Africa’s Constitution. The study proceeds to consider alternatives to the neutral partisanship model, analysing their underlying premises and ‘fit’ with the South African context. The study argues that the work of William Simon, a US scholar, is the most suitable approach to adopt in South Africa. This is because of its emphasis on the need for legal practitioners to exercise discretion in ethical decision-making, to take responsibility for their actions, and ultimately to seek justice as understood within the legal system in which they operate. The study then shifts to a consideration of how Simon’s approach needs to be contextualised given that it has been developed from a western/Global North perspective. To do this, I consider the content of the indigenous value of Ubuntu and its incorporation into the South African legal system. I then consider how Ubuntu could assist in the development of legal practitioners’ understanding, purpose and execution of their duties within a transformative constitutional democracy. In doing this, I develop inward- and outward-looking factors based on traditional and constitutional values directing legal practitioners in their ethical decision-making. Finally, the study closes with a consideration of how the approach can be institutionalised. The study proposes certain ways in which code regulation and education can support the success of the approach. , Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
Making Sense of Barkhuizen 2 : An Investigation into the Public Policy Defence of ‘Unfair Enforcement’ in South African Law, with Reference to the Law on Covenants in Restraint of Trade
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
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