A study of the nature, function and availability of orders of restitutio in integrum and specific performance as remedies in South African law
- Authors: Lambiris, Michael A
- Date: 1987
- Subjects: Restitutio in integrum (Roman law) Restitutio in integrum -- South Africa Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3703 , http://hdl.handle.net/10962/d1004752
- Description: This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. , KMBT_363 , Adobe Acrobat 9.53 Paper Capture Plug-in
- Full Text:
- Date Issued: 1987
- Authors: Lambiris, Michael A
- Date: 1987
- Subjects: Restitutio in integrum (Roman law) Restitutio in integrum -- South Africa Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3703 , http://hdl.handle.net/10962/d1004752
- Description: This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. , KMBT_363 , Adobe Acrobat 9.53 Paper Capture Plug-in
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- Date Issued: 1987
The law of culpable homicide in South Africa : with reference to the law of manslaughter in English law and the law related to negligent killing in German law
- Authors: du Plessis, J R
- Date: 1987
- Subjects: Homicide -- Law and legislation -- South Africa Homicide -- Law and legislation -- England Homicide -- Law and legislation -- Germany (West)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3670 , http://hdl.handle.net/10962/d1003185
- Description: Culpable homicide is the unlawful negligent killing of a fellow human being. As such it is in many respects a 'residual' crime being the verdict prosecutors may expect when they are unable to prove the intention to kill when prosecuting for murder. A feature of this was that in the past when defences such as, for instance, intoxication or provocation were raised at murder trials, convictions of culpable homicide were almost automatic. In recent years, under the influence of the 'purist' current in our Criminal law, intoxication has become a defence to culpable homicide and provocation resulting in loss of self-control has also become a defence to culpable homicide. These developments are unacceptable to some writers on criminal law and a move away from the purist approach to the 'traditional' or pragmatic approach is to be expected. Greater emphasis will be placed on practical results than on the achievement of logical consistency. This could result in the law of culpable homicide becoming more socially effective than it is at present.
- Full Text:
- Date Issued: 1987
- Authors: du Plessis, J R
- Date: 1987
- Subjects: Homicide -- Law and legislation -- South Africa Homicide -- Law and legislation -- England Homicide -- Law and legislation -- Germany (West)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3670 , http://hdl.handle.net/10962/d1003185
- Description: Culpable homicide is the unlawful negligent killing of a fellow human being. As such it is in many respects a 'residual' crime being the verdict prosecutors may expect when they are unable to prove the intention to kill when prosecuting for murder. A feature of this was that in the past when defences such as, for instance, intoxication or provocation were raised at murder trials, convictions of culpable homicide were almost automatic. In recent years, under the influence of the 'purist' current in our Criminal law, intoxication has become a defence to culpable homicide and provocation resulting in loss of self-control has also become a defence to culpable homicide. These developments are unacceptable to some writers on criminal law and a move away from the purist approach to the 'traditional' or pragmatic approach is to be expected. Greater emphasis will be placed on practical results than on the achievement of logical consistency. This could result in the law of culpable homicide becoming more socially effective than it is at present.
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- Date Issued: 1987
Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei
- Authors: Mqeke, Bangilizwe Richman
- Date: 1986
- Subjects: Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3687 , http://hdl.handle.net/10962/d1003202 , Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Description: In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
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- Date Issued: 1986
- Authors: Mqeke, Bangilizwe Richman
- Date: 1986
- Subjects: Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3687 , http://hdl.handle.net/10962/d1003202 , Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Description: In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
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- Date Issued: 1986
The plea of truth and public benefit as a defence to an action for defamation in South African law
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
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- Date Issued: 1985
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
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- Date Issued: 1985