No CrossRef data available.
Article contents
New Rights – New Laws: South African Legal Literature in a Time of Transition
Published online by Cambridge University Press: 28 February 2019
Extract
The title of this paper follows the 2003 Meeting theme: Law in a Time of Transition. Speakers thus far have discussed the various ways in which South African substantive law has changed since 1990. With such far-reaching changes in the political and legal landscape, one would expect to see some changes in the legal literature. There have indeed been profound changes in the forms of legal publication over the past few years, some of which would seem to be a direct result of the new legal and political system. I refer in this context not so much to the content and substance of our statutes and decided cases, but rather to the forms in which they are made available.
Information
- Type
- Proceedings
- Information
- Copyright
- Copyright © 2004 by the International Association of Law Libraries.
References
1 Chanock, Martin The Making of South African Legal Culture, 1902-1936: Fear, Favour and Prejudice. Cambridge: Cambridge University Press, 2001. 23-28 pp. See also Friedman, Lawrence et al. “State Supreme Courts: A Century of Style and Citation,” 33 Stanford Law Review 773 at 775-777, where the authors argue that the length of a legal judgment may be a reflection of legal culture.Google Scholar
2 Berring, Robert C. “Legal Research and Legal Concepts: Where Form Molds Substance,” California Law Review 75:15: 21–25.Google Scholar
3 At http://www.lib.uct.ac.za/law (visited daily during April 2004).Google Scholar
4 Barratt, Amandaand Snyman, Pamela, “Researching South African Law” available at http://www.llrx.com/features/southafrica.htm (last visited 22 March 2004).Google Scholar
5 See for example, Wyk, CW van “The Task Facing South African Law in the 21st Century, with Particular Emphasis on the Resilience of our Roman Law Heritage,” 34(2) Codicillus 45 at 47; and Erasmus, H., “Thoughts on Private Law in a Future South Africa” Stellenbosch Law Review 105 (1994): 113.Google Scholar
6 The civil law in force in the Dutch provinces in the 17th and 18th centuries is known as Roman Dutch law, and is the most important civil law source of South African law. However, civil law writers from other parts of Europe, such as Pothier writing in France, are also regarded as authoritative.Google Scholar
7 For an overview of this history see for example, Wyk, Van op. cit. at 46-47. For a more detailed legal history see Hahlo, H.R. and Kahn, Ellison The South African Legal System and its Background. Cape Town: Juta, 1973 or Ph Thomas, J. et al. Historical Foundations of South African Law. 2nd ed. Durban: Butterworths, 2000.Google Scholar
8 Constitution of the Republic of South Africa Act 108 of 1996, preceded by the Interim Constitution (Act 200 of 1993).Google Scholar
9 Nörr, K.W. “From Codification to Constitution: On the Change of Paradigm in German Legal History of the Twentieth Century” Codicillus 34:1: 29; O'Regan, Kate, “The Best of Both Worlds? Some Reflections on the Interaction between the Common Law and the Bill of Rights in Our New Constitution” (Seminar Report). Konrad Adenauer-Stigtung, 1999.Google Scholar
10 Nörr, op. cit. at 38.Google Scholar
11 O'Regan, op. cit. at 10.Google Scholar
12 Eörsi, G. Comparative Civil (Private) Law: Law Types, Law Group: The Roads of Legal Development. Budapest: Akadémiai Kiadó, 1979. 61 p.Google Scholar
13 Cheadle, Haltonand Davis, Dennis, “The Application of the 1996 Constitution in the Private Sphere” South African Journal on Human Rights 13:44: 63.Google Scholar
14 See for example, Wyk, Van op. cit. at 50, where she explains this dynamic with reference to Roman law.Google Scholar
15 Historically, Voet, Grotius, Gronewegan and Van Leewen are the most often cited Roman Dutch writers (Roberts, A A A South African Legal Bibliography Pretoria: Wallach, 1942 at 14). The Jan. 2000- June 2003 figures are for cases published in the South African Law Reports.Google Scholar
16 For a discussion on the importance of case law in American legal culture, see Friedman, et al. op. cit. at 773, 775-6, 785-6.Google Scholar
17 The South African Law Reports were first published under this title in 1947. From 1910 to 1946 Juta published a separate series for each division of the Supreme Court (eg Cape Provincial Reports, Transvaal Provincial Reports, etc). Prior to 1910, each of the jurisdictions that would come to comprise South Africa were largely independent, and cases from another jurisdiction had no more than persuasive value. This remained true for the new Supreme Court of South Africa (apart from the decisions of the Appellate Division which were binding), but on the whole, the decisions of sister jurisdictions were so highly persuasive that no one could afford not to read and take note of such cases. Typically therefore people needed to subscribe to the reports from every jurisdiction and it proved more convenient to combine these into a single series of “South African Law Reports.”Google Scholar
18 South African Tax Cases published since 1926.Google Scholar
19 The Industrial Law Journal published since 1980 includes the full text of labor judgments as well as traditional journal articles.Google Scholar
20 See for example the list compiled by the American Association of Law Libraries at www.aallnet.org/committee/criv/resources/tools/list/#WK (last visited 22 March 2004), and the discussion on this issue by Danner, Richard A. “Contemporary and Future Directions in American Legal Research: Responding to the Threat of the Available,” International Journal of Legal Information 31:179: 180.Google Scholar
21 The company's logo and marketing have changed over the past couple of years with the Lexis Nexis portion of the name acquiring a much larger type face than the Butterworths portion. This suggests that as consumers become accustomed to the Lexis Nexis trade name as the “new Butterworths,” Lexis Nexis will become the primary trade name for the South African products of this company.Google Scholar
22 See for example, Statutes of the Republic of South Africa, Classified and Annotated published by Butterworths since the formation of the Union of South Africa in 1910.Google Scholar
23 Juta has published law reports for every year since the establishment of the Cape Supreme Court in 1828. For a detailed list of these reports see Hosten, W.J.et al. Introduction to South African law and Legal Theory. 2nd ed. Durban: Butterworths, 1995. 1362-1369 pp.Google Scholar
24 In fact, Butterworths had published a series of law reports by this title in 1947. The series was abandoned (technically, “merged with Juta's South African Law Reports”) after a single year of publication, apparently as the result of the “gentleman's agreement.” The current series of the All South African Law Reports was launched in 1996.Google Scholar
25 For the purposes of this discussion, I have not included the specialized tax and labor reports that already existed in 1989. These series are still in existence, and Butterworth's has produced rival series here too, such as their Labour Law Reports and their Arbitration Reports.Google Scholar
26 See for example, Friedman, et al. op cit. at 795-6 where the authors define an “important case” as one which has been cited in 12 or more subsequent cases.Google Scholar
27 The citation count is based on Butterworths Consolidated Index and Noter-up to the All South African Law Reports, 1996-2001 and the South African Law Reports 1947-2001. Durban: Butterworths, 2002.Google Scholar
28 This conclusion is supported to some extent by the fact the “famously important” judgment, Administrator, Transvaal v Traube 1989 (4) SA 731 A (applying the doctrine of legitimate expectation) has been cited in 81 subsequent cases, making it one of the most cited cases in South African law.Google Scholar
29 Of course, published cases can be influential outside of the courtroom. A reported judgment might state the law so unambiguously that litigants are persuaded to settle rather than go to court. This kind of citation count does not reflect this kind of influence.Google Scholar
30 See Table Two.Google Scholar
31 See Table Two.Google Scholar
32 See Table Three.Google Scholar
33 The overall percentage of cases which were (a) unique to the All South African Law Reports and (b) cited subsequently- i.e. valuable judgments which were only available through subscription to this series.Google Scholar
34 Also the aim behind the parent company's All England Reports – see Cusworth, Neville “A Distinguished History” New Law Journal 143: 287.Google Scholar
35 As Table Two shows, 45 of the 84 cases published in BCLR in 1996 were also reported in the South African Law Reports (53%). Table Three shows that 95.8% of these cases have been cited subsequently.Google Scholar
36 There were 16 unique cases, of which 80% have been cited.Google Scholar
37 The overall percentage of cases which were (a) unique to the Constitutional Law Reports and (b) cited subsequently – i.e. valuable judgments which were only available through subscription to this series.Google Scholar
38 McCrudden, Christopher “A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights” in O'Donovan, Katherine and Rubin, Gerry R, eds. Human Rights and Legal History: Essays in Honour of Brian Simpson. Oxford: Oxford University Press, 2000. 29 at 36.Google Scholar
39 For example the South African Constitutional Court judgment S v Makwanyane 1995 (3) SA 391; 1995 (6) BLCR 665 (CC) (finding the death penalty unconstitutional) has been cited in a number of foreign jurisdictions, including the United States (eg State v Nelson 155 N.J. 487, 715 A.2d 281; Gomez v Fierro 519 U.S. 918, 117 S.Ct. 285); the United Kingdom (eg R v Benjafield [2003] 1 A.C. 1099 (HL); Canada (eg United States v Burns 2001 SCC 7, 85 B.C.L.R. (3d) 1, 151 C.C.C. (3d) 97, 195 D.L.R. (4th) 1, [2001] 1 S.C.R. 283) and the European Court of Human Rights (Öcalan v. Turkey (2003) 37 E.H.R.R. 10).Google Scholar
40 Friedman, et al. op. cit. at 793-4 and ff. See also McCruden, op. cit. at 31-32 who discusses the motivations behind the search for “strictly legal” authorities in human rights cases. These strictly legal authorities might include foreign judgments.Google Scholar
41 S. 39(1) for example provides that “When interpreting the Bill of Rights, a court … must consider international law; and may consider foreign law.”Google Scholar
42 Op. cit. at 36.Google Scholar
43 Danner, Richard A. “Justice Jackson's Lament: Historical and Comparative Perspectives on the Availability of Legislative History” 13 Duke Journal of Comparative and International Law 151 at 192-193. In the case of some statutes, the legislative history runs to nearly 11,000 pages.Google Scholar
44 Llewellyn, Karl N. “Legal Tradition and Social Science method – A Realist's Critique” in 89 Essays on Research in the social Sciences at 95-96, quoted by Richard Danner, A., “Contemporary and Future Directions in American Legal Research: Responding to the Threat of the Available,” 31 International Journal of Legal Information 179 at 182.Google Scholar
45 This voluminous material continues to grow: in addition to the legislative histories, it has been estimated that 200,000 cases are published annually along with 50 000 pages of legislation (Danner, Richard A. ibid. at 181).Google Scholar
46 In Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, for example, Lord Diplock complained that advocates cited too many precedents of little value. Cited in Leith, Philip “Legal Citations,” 2000 (3) The Journal of Information, Law and Technology (JILT) http://elj.warwick.ac.uk/jilt/00-03/leith.html.Google Scholar
47 Laddie, J. Per in Michaels and Another v. Taylor Woodrow Developments Ltd and Others [2001] Ch. 493 Ch D. Quoted by Philip Leith, op. cit.Google Scholar
48 This is a lesser risk for practioners or libraries with no interest in criminal law and might therefore not be prejudiced through a failure to subscribe to the South African Criminal Law Reports.Google Scholar
49 AustLII at http://www.austlii.org/.Google Scholar
50 BaiLII at http://www.bailii.org/.Google Scholar
51 CanLII at http://www.canlii.org/.Google Scholar
52 Legal Information Institute at Cornell http://www.law.cornell.edu/.Google Scholar
53 See for example the Montreal Declaration on Public Access to Law adopted on 3 October 2002 by representatives from a number of Legal Information Institutes, available at: http://www.worldlii.org/worldlii/declaration (visited 7 October 2003).Google Scholar
54 Montreal Declaration supra.Google Scholar
55 See for example Report and Resolution of the BILETA Citations Workshop (University of Edinburgh, 11-12 March 2001) available at http://www.bileta.ac.uk/citations/citreport.html (visited December 2002); Wyman, James H. “Freeing the Law: Case Reporter Copyright and the Universal Citation System” 24 Florida State University Law Review 217.Google Scholar
56 For example, a decision of the Queen's Bench Division is cited as Smith v Jones [2002] EWHC 123 (QB).Google Scholar
57 See the Practice Direction of 14 January 2002, published [2002] 1 All ER 351, [2002] 1 WLR 344. Similar directives for the Court of Appeal were issued on 11 January 2001, published [2001] 1 All ER 193, [2001] 1 WLR 194. Ironically, since these are not cases, neither directive has a neutral citation of its own. See also Kennedy, Bruce “Cultural Considerations Behind Neutral Citations for the International Legal Community,” Commentary 2000 (3) The Journal of Information, Law and Technology (JILT) http://elj.warwick.ac.uk/jilt/00-03/kennedy.html for discussion of the neutral citation systems emerging in Australia, Canada, and the United States.Google Scholar
58 http://www.concourt.gov.za/ (visited March 2004).Google Scholar
59 http://kiewiet.uovs.ac.za/Faculties/law/supreme.htm (visited March 2004).Google Scholar
60 See for example, the University of Stellenbosch Law Faculty site at http://law.sun.ac.za/, which has links to judgments from the Cape High Court (visited September 2003); Rhodes University Faculty of Law has judgments from the Eastern Cape Division at http://www.ru.ac.za/law/ecd (visited March 2004).Google Scholar
61 Juta's Daily Law Reports at http://www.jutastat.co.za and Butterworths’ Judg-ments OnLine at http://www.butterworths.co.za.Google Scholar
63 Michaels and Another v. Taylor Woodrow Developments Ltd and Others [2001] Ch. 493 Ch D.Google Scholar
64 At http://www.gov.za/ (last visited 22 March 2004).Google Scholar
65 I refer to her presentation at this Meeting. See her paper in this issue of IJLI.Google Scholar
66 See fn. 53 above.Google Scholar
67 The OCLC Environmental Scan listed 7% of South Africans as Internet users. (2003 OCLC Environmental Scan: Pattern Recognition OCLC, 2003 at 4). According to Census 2001, 968,741 South African households (8.6%) have a computer in the home. Thank you to Norma Read for these figures, which I have extracted from her notes prepared for her presentation to the OCLC Members Council, February, 2004.Google Scholar
68 Significant exceptions to this are the 1993 and 1996 constitutions, which do appear in consolidated form, i.e. the texts have been updated by subsequent amendments.Google Scholar
69 To complicate things further, this might not always be obvious. While the title of the Occupational Heath and Safety Act Amendment Act 181 of 1993 indicates that this act amends the original, the title of the Labour Relations Act does not suggest that it amends the Occupational Heath and Safety Act.Google Scholar
70 RGN155/23108/3, 10Feb02.Google Scholar
71 GenN283/13094/22, 28Mar91.Google Scholar
72 RGN2483/14254/25, 4Sep92, corrected by RGN2626/14280/17, 18Sep92.Google Scholar
73 RGN2245/14192/69, 7Aug92, corrected by RGN3167/14410/59, 20Nov92.Google Scholar
74 The footnotes immediately above this contain the kind of information necessary to find notices and regulations in the Government Gazette.Google Scholar
75 And, indeed, this is where the Regulation and Gazette numbers and dates cited above were found.Google Scholar
76 Juta Law publications include Juta's Statutes of South Africa (published annually in six volume sets) and Juta's Index to the South African Government and Provincial Gazettes. Butterworths publications include the Butterworth's Statutes of South Africa (loose-leaf service updated annually) and a range of titles in the Butterworths Legislation Service series which includes the full text of selected acts together with the applicable regulations. Both sets of Statutes include generous indexing, providing the date and Government Gazette number of any regulations passed in terms of the acts. The online version of these products often link to the full text of such regulations.Google Scholar