The state's role in the regulation and provision of legal services in South Africa and the United States: supporting, nudging, or interfering
- Authors: Kruuse, Helen , Genty, Philip
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129153 , vital:36225 , https://heinonline.org/HOL/P?h=hein.journals/frdint42amp;i=390
- Description: An independent legal profession is said to be "the bulwark of a free and democratic society."1 It is also said that a high measure of independence of mind and action by legal actors is necessary for the maintenance of the rule of law.2 However, too often, there is the allegation (within the sociological literature in particular) that the legal profession has used the concepts of independence and the rule of law as a shield or cuirass rather than as a sword.3 The image of lawyers representing unpopular clients fearlessly and advocating on behalf of unpopular causes, so as to uphold legal rights, is replaced with images of lawyers using these self-same concepts to preserve the status quo,4 favor those with high social status5 and pursue self-regulation for self-interest rather than for any so-called public interest. 6
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- Date Issued: 2018
The thin edge of the wedge: ukuthwala, alienation and consent
- Authors: Mwambene, Lea , Kruuse, Helen
- Date: 2017
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129165 , vital:36226 , https://doi.org/10.1080/02587203.2017.1303902
- Description: Ukuthwala, a mock abduction of a girl for the purpose of a customary marriage, has been subject to debate at both local and national level. This debate culminated into a South African Law Reform Commission Report on the practice of ukuthwala. However, the case of Jezile v S brings theory into reality, putting in stark relief the issues that surround this custom in a constitutional democracy. The Jezile case highlights the disjuncture between communities’ lived realities and the constitutional imperatives of the right to practice one’s culture, as well as the rights to equality and dignity, specifically for women and the girl child in the context of ukuthwala. Based on field research conducted in September 2015 and April 2016 in Engcobo (where the ukuthwala was alleged to take place in Jezile), this article sets out the community’s views in the aftermath of the case. Highlighting the alienation of the community from the law, and the complexities in understanding consent, the article posits that much more needs to be done from the ‘bottom up’ to ensure gender equality and protection of the girl child from harm.
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- Date Issued: 2017
Legal ethics education in South Africa: possibilities, challenges and opportunities
- Authors: Robertson, Michael , Kruuse, Helen
- Date: 2016
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68941 , vital:29341 , http://dx.doi.org/10.1080/02587203.2016.1210934
- Description: Publisher version , The South African legal profession has been subject to harsh criticism in the last few years, leading to what some have called ‘an ethical crisis.’ Although this perception may or may not be warranted, there have been numerous calls for improved ethical legal practices by South African lawyers. This article seeks to contribute to a discussion about the importance of implementing legal ethics education in South African law schools. The authors (a) explore the meaning of ‘ethical legal practice’ by reference to the international literature; (b) examine the way in which legal ethics has so far been presented in the limited South African literature on the topic; (c) argue the need for a more thorough and critical literature on South African lawyers’ ethics, coupled with a commitment to developing a stronger legal ethics culture within the profession and the legal academia; and (d) suggest a possible approach for South African legal ethics education in the future, with reference to recent developments in other countries.
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- Date Issued: 2016
The law of divorce and dissolution of life partnerships in South Africa: book review
- Authors: Kruuse, Helen
- Date: 2015
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54129 , vital:26394 , http://scholar.ufs.ac.za:8080/xmlui/handle/11660/2454
- Description: Jackie Heaton’s latest contribution to the family law domain is formidable – 777 pages of carefully crafted opinions and discussions of the law affecting divorce and dissolution of life partnerships. Given the range, diversity and depth of issues in this area, it is no wonder that she calls on those being among the best in their field to assist her in writing up the book.
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- Date Issued: 2015
Unfulfilled promises: the implementation of the Recognition of Customary Marriages Act in South Africa
- Authors: Mwambene, Lea , Kruuse, Helen
- Date: 2015
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129175 , vital:36227 , DOI:10.1093/lawfam/ebv009
- Description: The Recognition of Customary Marriages Act 1998 (the Act) regulates all matters in relation to customary marriages in South Africa. The Act was specifically enacted to recognize customary marriages as valid, but was also passed to address gender inequality by regulating various customary marriage aspects, the most important being registration and proprietary consequences. This article reflects on the findings of a qualitative study on the registration and proprietary consequences of customary marriages conducted in two rural sites in the Eastern Cape (the former Ciskei and Transkei) and one urban site in the Western Cape (Khayelitsha). These findings show two important issues. First, that access to resources upon death of a spouse or divorce is often premised on successful registration of the marriage, which seldom occurs. Secondly, that the continued patriarchal nature of customary marriages stands in the way of realizing gender equality, particularly in relation to the proprietary consequences of a marriage. As a result, we make possible recommendations of how the Act’s objectives can be met.
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- Date Issued: 2015
Conscientious objection to performing same-sex marriage in South Africa
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129186 , vital:36228 , https://doi.org/10.1093/lawfam/ebu001
- Description: This article considers whether public servants should be exempt from South Africa’s equality provisions and anti-discrimination legislation in solemnizing same-sex marriages. In order to deal with this question, the article analyses the treatment of freedom of conscience and conscientious objection by comparing the solemnization of same-sex marriage by public servants, with another public service: that of terminations of pregnancy. While each situation will inevitably turn on the particular circumstances of the case, I argue that there should be a content-neutral guiding principle (as well as consistency) in dealing with these situations. The issue in each situation is narrowed to whether a civil servant’s personal convictions can override the state’s secular obligations in providing a service, and whether there is room for a qualified right to conscientious objection. By analysing the matter in this way, it is clear that the unqualified statutory exemption clause in South Africa’s Civil Union Act is constitutionally objectionable.
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- Date Issued: 2014
Sailing between Scylla and Charybdis: Mayelane v Ngwenyama
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54118 , vital:26392 , https://www.ajol.info/index.php/pelj/article/view/112096
- Description: Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
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- Date Issued: 2014
A maturing manifesto: the constitutionalisation of children’s rights in South African jurisprudence 2007-2012
- Authors: Sloth-Nielsen, Julia , Kruuse, Helen
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68972 , vital:29344 , http://dx.doi.org/10.1163/15718182-02102005
- Description: Pre-print , This article represents the next in a series of five-year overviews of children’s rights in the courts in South Africa. Using the Convention on the Rights of the Child and the African Charter on the Welfare of Children as a point of departure, the study suggests that it is in the public sphere that children’s rights have had their most impact in the period under review. The article highlights eight areas of distinction in this five-year period: these include judicial approval of resource mobilisation for the fulfilment of children’s rights, emphasis on the quality of and standards in education; the development of innovative remedies to deal with unreasonable state measures affecting children, and an increasing focus on the right to dignity of the child. The authors conclude that the scope of the cases cited points to the growing insertion of children’s rights considerations in increasingly diverse areas of legal interaction. Furthermore, the authors posit that the CRC and ACRWC – together with non-binding sources of international law – have substantively informed and enriched the jurisprudence of South African courts.
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- Date Issued: 2013
Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54094 , vital:26389 , http://journals.co.za/content/ju_jur/2013/1/EJC148455
- Description: The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
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- Date Issued: 2013
You reap what you sow : regulating marriages and intimate partnerships in a diverse post-apartheid society
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54152 , vital:26396 , https://tinyurl.com/yaughtn2
- Description: South Africa does not have a particularly proud history. Marred by the politics of separate but (un)equal treatment of its people, the country's past political system has had a damaging effect in all spheres, but specifically on that of the family. In the context of relationships, it is fair to say that the apartheid system was replicated in family law, with the Western 'white' monogamous marriage receiving the state's stamp of approval - leaving other relationships (customary, Muslim, homosexual, cohabiting etc) largely out in the cold.
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- Date Issued: 2013
From the grave to the cradle : the possibility of post-mortem gamete retrieval and reproduction in South Africa
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: Article
- Identifier: vital:24533 , http://hdl.handle.net/10962/36254 , http://www.tandfonline.com/doi/abs/10.1080/19962126.2012.11865059
- Description: The development of reproductive technologies in the last century, such as effective contraceptive methods, artificial insemination, pre-implantation genetic diagnosis, amongst others, has fundamentally reshaped traditional concepts of reproduction parenthood and has raised practical and ethical concerns. This article describes one such development, namely, post-mortem gamete retrieval (PMGR) for the purposes of posthumous reproduction. In exploring the particular concerns arising from this technology, I argue that South Africa lacks a coherent, considered approach to the issue. In considering models adopted in overseas jurisdictions, and the various bases for the legalisation of such a procedure, I adopt an interest theory of rights to argue for restricted access to such a technology in suitable circumstances.
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- Date Issued: 2012
Substantive second-level reasoning and experiential learning in legal ethics
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68983 , vital:29345 , https://hdl.handle.net/10520/EJC127082
- Description: Publisher version , This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
- Full Text: false
- Date Issued: 2012
A South African response to ethics in legal education
- Authors: Kruuse, Helen
- Date: 2011
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54174 , vital:26399 , https://www.routledge.com/The-Ethics-Project-in-Legal-Education/Robertson-Corbin-Tranter-Bartlett/p/book/9780415546515
- Description: The contributions in this volume suggest that "the ethics project in legal education" is increasingly an international one. Even though the strength of commitment by both the profession and the legal academy to "ethics learning" within law schools varies, two fundamental questions confront all who work in this area. First, what is it that we want our students to learn (or, perhaps, in what manner do we want our students to develop) from the teaching of "legal ethics"? Second, how can we create a learning environment that will encourage the nature and quality of learning we think is important?.
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- Date Issued: 2011
A South African response to ethics in legal education
- Authors: Kruuse, Helen
- Date: 2010
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54201 , vital:26403 , https://www.lehmanns.de/shop/recht-steuern/17056480-9780195985818-the-law-of-persons-in-south-africa?PHPSESSID=ogicv1k4dkbpi03lq53elurqh2
- Description: This book reflects the legislative change and consequent changes in common law that fundamentally affect the law of persons, in particular the Children's Act of 2007 and the application of the constitution.
- Full Text: false
- Date Issued: 2010
'Fetal "rights"? The need for a unified approach to the fetus in the context of feticide'
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54163 , vital:26397 , https://store.lexisnexis.co.za/products/tydskrif-vir-hedendaagse-romeinshollandse-reg-journal-of-contemporary-romandutch-law-skuZASKU9780409079241/details
- Description: The issues of fetal protection, fetal rights and the status of unborn life have been debated on a variety of levels in a variety of disciplines over the past centuries. One needs only think of John Milton who asked the “hard” question: “For man to tell how human life began / Is hard: for who himself beginning knew?” (Paradise lost (1667) Bk 8 251–252). While the issue of fetal rights most often arises in abortion debates, the issue of fetal rights in the context of feticide has received scant attention in South Africa. (For a thought-provoking general discussion of fetal rights, see Du Plessis “Jurisprudential reflections on the status of unborn life” 1990 TSAR 44; Van Niekerk (ed) The status of prenatal life (1991) and Kahn (ed) The sanctity of human life (1983).) This note seeks to initiate a discussion on the current legal position in South Africa in respect of feticide.
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- Date Issued: 2009
'Here's to you, Mrs Robinson' : peculiarities and paragraph 29 in determining the treatment of domestic partnerships
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: vital:26388 , http://hdl.handle.net/10962/54083
- Description: There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct. The law is one of the important architects of social norms. At times, it can be a tool to solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other times, the law is an anchor and a constraint upon social and ideological advances. With regards to equality and non-traditional partnerships, it seems that law falls into this latter category.
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- Date Issued: 2009
Drawing Lines in the Sand: AM v RM 2010 2 SA 223 (ECP)
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54107 , vital:26391 , http://www.ufh.ac.za/speculumjuris/files/pdf/SpeculumJuris_2009_Part_2.pdf
- Description: Judge Elna Revelas’s decision in the case of Mohamed v Mohamed 1 may be described as one of those run-of-the-mill applications in terms of rule 43 which are routinely heard on motion court days in any one of our high courts across the country. This case note suggests that her decision belies such a description. Instead, this note suggests that her decision marks a move away from existing jurisprudence on Muslim marriages in a way which may undermine, rather than promote, the recognition and respect for the marriage institutions of different religious systems and beliefs. I tentatively suggest that by granting the rule 43 application the court may have effectively imposed civil marriage obligations on a religious marriage even though the parties had not concluded a marriage in terms of the Marriage Act.2 As such, the decision has potentially radical consequences for parties in Muslim marriages and highlights the complex issues that courts have had to face in the last two decades without any guiding legislation. In order to understand the judgment properly, its context has to be considered. This context includes (1) the numerous judgments extending protection to women in Muslim marriages in the last two decades against the backdrop of the coming into effect of the Constitution of the Republic of South Africa, 1996; and (2) the application by the Women’s Legal Centre Trust (hereafter “WLCT”) to the Constitutional Court to force the President and Parliament to enact legislation to recognise and protect Muslim marriages.
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- Date Issued: 2009
Social Services and Benefits
- Authors: Kruuse, Helen
- Date: 2008
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54211 , vital:26405 , https://store.lexisnexis.co.za/products/family-law-service-skuZASKUPG642
- Description: Family Law Service is a subscription based product including both the printed loose-leaf and LexisMobile publications. Updates for 12 months (print and mobile) are included in the price. Family Law Service covers aspects of law pertaining to the family, including domestic violence, the Law of Islam, same- sex life partnerships, the effects of the Children's Act, 2008 and anti-trafficking law in South Africa. Family Law Service is maintained in three volumes with commentary and legislation, and with two service issues published a year.
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- Date Issued: 2008
The Emerging Role of ubuntu-botho in Developing a Consensual South African Legal Culture
- Authors: Kruuse, Helen , Midgley, Rob
- Date: 2007
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54224 , vital:26413 , https://dspace.library.uu.nl/handle/1874/27652
- Description: Legal culture in apartheid South Africa has variously been described as conservative and positivist, with judicial deference to the executive and to parliamentary sovereignty; formalistic, technical and authoritarian; and ‘of reasoned argument’ and justification. Until 1994, law drew its legitimacy from the very fact that it was state sanctioned, and the material context or the social aftermath of the application of a rule was in many instances deemed irrelevant. However, the adoption, first, of the interim Constitution, and later the final Constitution, saw a desire to transform this legal culture. The Constitution is now more than a formal document regulating public power: it also embodies a normative value system in terms of which judges are called upon to interpret laws and their application.
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- Date Issued: 2007