Search

The office of director, by its very nature, imposes duties and responsibilities on its bearer. Taking into account the characteristics and nature of companies, it is inevitable that the scope of directors’ activities varies from company to company. A director, irrespective of the individual personality of the company, owes the company the duty of care and skill. Coupled with the duty of care and skill much emphasis, particularly in the 21st century, has been placed on the concept of corporate governance. It is within this context that the personal liability of company directors for mere errors of judgment must be considered. The object of part one of this article is to examine the characteristics of the American business judgment rule. Part 1 explores the origin of the rule and takes into account the various purposes that the rule fulfills in American law. The law relating to director liability in America is examined and the place of the business judgment rule in an American context is considered. Attention is paid to the rule’s basic requirements, the application of the rule and the subsequent consequences of the application thereof. Where possible, the requirements of the rule are illustrated through a discussion of case law. In part 2 the South African position relating to the director’s common-law duty of care and skill is considered. The Companies Act, recommendations of the King Committee, and the Department of Trade and Industry’s report on corporate lawreform are taken into account. The efficiency of the current law in South Africa is evaluated in light of the advantages and disadvantages of the importation of a foreign legal rule into South African law. In the conclusion an assessment is made of whether it is indeed desirable or necessary to import the business judgment rule into South African law.

The business judgment rule entails that courts should not hold a director liable for a decision that produces poor results in the circumstances in which the director made the decision in good faith, with care and on a informed basis, which the directorbelieved was in the best interest of the company. This article considers the South African position relating to the director’s commonlaw duty of care and skill. The Companies Act, recommendations of the King Committee, and the Department of Trade and Industry’s report on corporate law reform are taken into account. The efficiency of the current law in South Africa is evaluated in light of the advantages and disadvantages of the importation of a foreign legal rule.A closer examination of the characteristics of the business judgment rule and the South African law relating to director liability will reveal whether it is essential to implement the rule in South Africa. In paragraph 3 a conclusion is drawn and an assessment made of whether it is indeed desirable or necessary to import the business judgment rule into South African law.

Chronic overcrowding has plagued the South African penal system since the advent of democracy in 1994. This has resulted in the large-scale gross violation of the basic human rights of large numbers of prisoners. After examining certain historical examples of overcrowding in the prisons of Africa generally, the article focuses on the history of chronic overcrowding in the prisons of South Africa during the post-apartheid period. The hard choices facing the South African people and government in relation to this issue are then examined.

This article continues from Part 1 in attempting to explain the extraordinary tenacity and prolonged decline of judicial corporal punishment in Britain and its former colonies in Africa. The focus in Part 2 is on the status of judicial corporal punishmentwithin a number of these former colonies. The majority of former British colonies in Africa appear to be moving towards eradicating the use of judicial corporal punishment in all courts, be they criminal or tribal. Some countries, such as Botswana, have made no move to abolish the practice of judicial corporal punishment, whilst others, such as Namibia and South Africa, have outlawed the practice completely. In other countries such as Tanzania, the position is unclear, with legislation still authorising the practice, although the courts have pronounced on its unconstitutional nature. What is clear is that in most of these countries, whether the practice has been abolished or not, public opinion on the matter is deeply divided. Continuous calls are made for the return of corporal punishment in those countries which have abolished it, while equally insistent calls are made for its removal in those countries which retain the practice.

Judicial corporal punishment is still widely used in many countries in Africa. Even those African countries which have abolished the practice have only done so relatively recently, following protracted struggles in the courts. In Britain, which was one of the major colonial powers in Africa, calls for a return to judicial corporal punishment continue to be made, more than half a century after its abolition in that country. The idea that the lash is the only form of punishment that is able to curb rampant criminality continues to exert a powerful hold over the public imagination in both Britain and its ex-colonies in Africa. This article focuses on both Britain and its former colonies in Africa and seeks to address the question as to why a method of punishment which, in theory, was becoming outmoded during the nineteenth century, continues to be used in certain countries in Africa and, even where it is not used, took an inordinately long time to be abolished. The extraordinary and continuing popularity of the idea of judicial corporal punishment, in the African context is examined and explained.

For centuries corporal punishment was used as a method for disciplining school children in Britain. Britain was one of the last countries in the European Union to abolish this form of punishment in its schools, and did so only after a long and bitter struggle waged in parliament, on the streets, and in various courts of law. This article traces the manner in which this practice became deeply entrenched in the British way of life, as well as the long battle to dislodge it. The focus then shifts to the evolution and eventual demise of this form of punishment in South African schools. During the long years of British rule in South Africa, British attitudes towards the corporal punishment of school children profoundly influenced those responsible for education in this African country. However, the attachment of South African educational authorities, educators, and parents to corporal punishment cannot be explained simply by reference to the influence of British educational values, and the article seeks to take account of the general history of corporal punishment in the African context. This history is entwined with the history of colonialism on the continent, and the article explores the unique social meanings attached to this form of punishment in the African context, as well as its historical importance as a means of social control. The article is divided into two parts. In part one of the article, the evolution and eventual demise of corporal punishment in British schools is traced, followed by a brief general overview of corporal punishment in the African context, as well as ashort discussion of the use and eventual abolition of this form of punishment in South African schools. In part two of the article, the continued use of corporal punishment in South African schools, even after this form of punishment was legally abolished following the end of “apartheid”, is examined in detail.

As pointed out in part one of this article, politics, art and the law make uncomfortable bedfellows, and the commissioning of public art by public bodies often gives rise to bitter controversy. Part one traced a recent ongoing public spat in the Durban area concerning a sculpture of three large elephants by the acclaimed international artist, Andries Botha. Using that case as a lens, part one attempted to situate the central issues surrounding the commissioning of public art by public bodies in post-apartheid South Africa within a broad historical, political and constitutional framework. Part two of this article examines certain of the more specific and salient legal issues which the authors believe South African courts dealing with matters of this kind will need to address. The possible legal rights of both the South African public when confronted with undue state interference in matters of public art, as well as those of individual artists involved in such matters, are discussed. In relation to the rights of the South African public, the constitutionality of the commissioning process itself (that is, potential constitutional constraint on the actions of public officials who commission public works of art), as well as the potential right of the general public to the preservation of works of art of “recognized stature”, is discussed. As for the rights ofindividual South African artists, a number of areas of the law – constitutional, contractual and statutory – as possible sources for such rights are examined. In particular, the “moral rights” of South African artists, protected in terms of statute, are analysed and discussed in detail. The authors conclude that the funding and commissioning of public art by public bodies in South Africa should be arms-length, and that artists should be maximally free to determine the content of their creative expression. Furthermore, public art should be as diverse as possible within South Africa’s constitutional democracy, reflective of the beautiful diversity of the country’s people. Direct political interference in matters of public art should be strenuously avoided.

Each year in KwaZulu-Natal, South Africa, a ceremony is held by the Zulu people in honour of the “first fruits”. A certain part of what is known as the Ukweshwama ceremony involves the ritual killing of a bull by young Zulu warriors with their bare hands. The ritual is opposed by certain animal rights campaigners, who believe it is cruel to the animal which is sacrificed. A highly polarized debate has arisen between those opposed to any form of cruelty to animals on the one hand, and those seeking to defend ancient cultural practices on the other. The purpose of this article is to explore whether or not ancient rituals such as the ritual bull-killing at theUkweshwama ceremony have a place in the modern world, and to interrogate the implications of the dispute which has arisen for the development of South Africa’s constitutional democracy. The article is in two parts. Part One provides a brief synopsis of the importance of cattle within traditional Zulu culture and traces the public controversy surrounding the bull-killing ritual in KwaZulu-Natal. It also examines the legal arguments put before court on the issue, and discusses the origins in antiquity of certain of the main myths and rituals concerning bulls and bullkilling. Part Two compares and contrasts the respective controversies surroundingthe Ukweshwama bull-killing ritual on the one hand, and Spanish bullfighting on the other. It also examines the wide range of positions adopted by philosophers and legal scholars vis-a-vis difficult questions of animal rights and cruelty to animals. The twosides of the argument are weighed up and tentative conclusions reached.

The years immediately following South Africa’s second democratic election, held in June 1999, were significant in that they marked the end of the “honeymoon” period which followed the country’s transition from apartheid to democracy in 1994. This article focuses on the public discourse surrounding imprisonment in South Africa during this important “post-honeymoon” period. The article traces the continued systematic violation of the basic human rights of many of those confined in South African prisons throughout the period. Part One of the article dealt with the many public debates surrounding chronic prison overcrowding and its effects, whereas Part Two deals with a host of evils which beset the South African penal system at this time, including very poor conditions of detention, high levels of gang activity, the spread of HIV/AIDS, the escape of dangerous criminals from different prisons in the country, and instances of corruption and other criminal activity amongst prisoners and staff.