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Law Faculty: Books Published

Fundamentals of South African Trust Law 

Fundamentals of SA Trust Law provides a concise, yet comprehensive, exposition of the principles underlying South African trust law, but also attends to many issues pertinent to the trust in legal and commercial practice. Concepts are explained in an uncomplicated and straightforward, yet sufficiently comprehensive manner in order for the book to be used as a student text, an introduction to trust law for the practitioner who does not possess a legal qualification, and even as a resource for the experienced legal practitioner and advanced trust law scholar in search of answers to contemporary trust law questions.

by Francois Du Toit (Author)Bradley Smith (Author)Anton van der Linde (Author) 

Chigwata, T. Provincial and Local Government Reform in Zimbabwe: An analysis of the Law, Policy and Practice (Cape Town: Juta, 2018) 532 pp.

Zimbabwe’s Constitution of 2013 provides for multi-level government at national, provincial and local level. This book explores the nature, evolution and future of this multi-level system of government against the background of international best practices. The book considers key questions about the multi-level system of government and shows how it radically differs from the old Lancaster House constitutional order. The roles that provincial and local governments, as well as traditional leaders, fulfil in the new order are examined, the reforms needed to implement the system are outlined, and lessons to be learnt from other countries with multi-level governments are considered. This book aims to aid the realisation of Zimbabwe’s constitutional goals of development, democracy and peace through effective multilevel governance and contributes to the international discourse on decentralisation and the role of subnational governments in Africa.

(Tinashe Chigwata is a Senior Researcher at the Dullah Omar Institute. He works with the SARChI Chair in Multilevel Government, Law and Policy as well as in the Applied Constitutional Studies Laboratory (ACSL))

Du Toit D. et al Labour Law through the Cases (LexisNexis, 2002-2018) loose-leaf

Labour Law through the Cases is a detailed and comprehensive guide to the application of South African labour law. Extensive commentary examines each principal labour statute, section by section, in light of judgments handed down in South African labour courts. Each statutory provision interpreted by the courts and arbitrators is subjected to detailed analysis and comment. Specific issues dealt with in each judgment and award are identified, enabling one to distinguish quickly between rulings that were followed, and thus remain authoritative, and rulings that were rejected. The authors' extensive exposition and analysis, together with their authoritative opinions as to which are the better judgments, alert one to problem areas and help one identify judgments that are more likely to be followed.  

(Darcy du Toit is an Emeritus Professor of the Law Faculty, UWC. He is the academic coordinator of the Social Law Project as well as of the niche area in LL4.0)

French D. and Kotzé L. (eds.) Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar, 2018) 331 pp.

Building on the previously established Millennium Development Goals, which ran from 2000–2015, the 2015 Sustainable Development Goals (SDGs) provide the UN with a roadmap for development until 2030. This topical book explores the associated legal and normative implications of these SDGs, which in themselves are not legally binding. The 17 goals and 169 targets of the SDGs cover areas as crucial as poverty reduction, climate change, clean water and access to justice. Combining both thematic and goal-specific analysis, expert contributors establish the relevance not just of international law, but also of a broader range of normative frameworks including constitutional norms, domestic regulatory law and human rights. Connecting the SDGs to wider debates in international law and politics, this book ultimately demonstrates that law has an important constitutive and instrumental role to play in both implemention and analysis. The first of its kind to offer a specific focus on the relationship between law and the SDGs, this much-needed book will prove invaluable for scholars in the field of international sustainable development. Its insightful observations will also provide food for thought for both related international organizations and national government officials.

(Duncan French is Pro Vice Chancellor / Head of the College of Social Science, University of Lincoln, and Extraordinary Professor, Law Faculty, UWC)

Ruiz Abou-Nigm V., McCall-Smith H and French D. (eds.) Linkages and Boundaries in Private and Public International Law (Hart, 2018) 272 pp.

Do private and public international law coincide in their underlying objectives when it comes to their respective contribution to the realisation of global values? How do they work together towards the consistency and efficiency of the international legal order? This edited collection sets out a vision: to serve modern society, the international legal order cannot be defined as public or private. Linkages and Boundaries focuses on the interface between private and public international law and the synergies that a joint approach brings to topical issues, such as corporate social responsibility and environmental law, as well as foundational concepts such as international jurisdiction, state sovereignty and party autonomy. The book showcases the dynamic interaction between the two disciplines, with a view to contribute to a dialogue that is still only in the early stages of delivering its full potential. The collection explores ways to deepen the dialogue between these two distinct but interrelated disciplines, with a view to further their progression towards a more integrated and holistic approach to legal problems that require an international approach. The book brings together well-known experts and new voices from both disciplines and from a wide range of jurisdictions in Europe, North America and South America.

(Duncan French is Pro Vice Chancellor / Head of the College of Social Science, University of Lincoln, and Extraordinary Professor, Law Faculty, UWC)

Hamman A. The Impact of Anti-Money Laundering Legislation on the Legal Profession in South Africa (Galda Verlag, 2018) 262 pp. 

This work investigates the legislative measures employed in South Africa to combat the implication of lawyers in money laundering schemes. Criminals make use of sophisticated technological means to transfer money and launderers routinely approach lawyers to assist them in their illegal endeavours. The study considers South Africa’s efforts to fulfil its international anti-money laundering obligations whilst upholding the criminal procedural rights guaranteed in the Constitution. Unfortunately, in its quest to combat money laundering, Parliament did not consider seriously enough the position of lawyers and took the easy option of criminalising fees paid with tainted funds, as well as the non-submission of suspicious transaction reports (STRs) and cash transaction reports (CTRs). As a result, the South African legal profession is saddled with unacceptable constraints.

(Abraham Hamman is Head of the Department of Criminal Justice and Procedure, UWC).

Maris C.W. Tolerance: Experiments with Freedom in the Netherlands (Springer, 2018) 410 pp.

This book presents a collection of philosophical essays on freedom and tolerance in the Netherlands. It explores liberal freedom and its limits in areas such as freedom of speech, public reason, sexual morality, euthanasia, drugs policy, and minority rights. The book takes Dutch practices as exemplary test cases for the principled discussions on these subjects from the perspective of political liberalism. Indeed, the Netherlands may be viewed as a social laboratory in human tolerance. During the Cultural Revolution of the 1960s, Holland took the lead in a global emancipation process towards a society based on equal freedom. It was the first country to legalize euthanasia, soft drugs and gay marriage. In the final sections, the book examines the question of whether the political murders on the politician Pim Fortuyn and the film director Theo van Gogh, the reactions to Ayaan Hirsi Ali’s film Submission, as well as the success of the populist politician Geert Wilders are signs of the end of Dutch tolerance. Although it recognizes that the political climate has taken a conservative turn, the book shows that the Netherlands still shows remarkable tolerance.

(Cees Maris is Emeritus Professor of the University of Amsterdam, and Extraordinary Professor, Law Faculty, UWC)

Ndlovu, P. Competition Law in South Africa (Wolters Kluwer, 2018) 368 pp.

Derived from the renowned multi-volume International Encyclopaedia of Laws, this practical analysis of competition law and its interpretation in the South Africa covers every aspect of the subject – the various forms of restrictive agreements and abuse of dominance prohibited by law and the rules on merger control; tests of illegality; filing obligations; administrative investigation and enforcement procedures; civil remedies and criminal penalties; and raising challenges to administrative decisions. Lawyers who handle transnational commercial transactions will appreciate the explanation of fundamental differences in procedure from one legal system to another, as well as the international aspects of competition law. Throughout the book, the treatment emphasizes enforcement, with relevant cases analysed where appropriate. An informative introductory chapter provides detailed information on the economic, legal, and historical background, including national and international sources, scope of application, an overview of substantive provisions and main notions, and a comprehensive description of the enforcement system including private enforcement. The book proceeds to a detailed analysis of substantive prohibitions, including cartels and other horizontal agreements, vertical restraints, the various types of abusive conduct by the dominant firms and the appraisal of concentrations, and then goes on to the administrative enforcement of competition law, with a focus on the antitrust authorities’ powers of investigation and the right of defence of suspected companies. This part also covers voluntary merger notifications and clearance decisions, as well as a description of the judicial review of administrative decisions. Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable time-saving tool for business and legal professionals alike. Lawyers representing parties with interests in the South Africa will welcome this very useful guide, and academics and researchers will appreciate its value in the study of international and comparative competition law. 

(Precious Ndlovu is a Senior Lecturer in the Department of Mercantile and Labour Law, UWC)

Steytler N.C. and De Visser J. Local Government Law of South Africa (LexisNexis, 2012-2018) loose-leaf

Local Government Law of South Africa offers a comprehensive analysis of local government law specifically for legal practitioners, municipal officials, national and provincial officials involved in local government matters and their legal advisors. With the completion of the transition of local government, this volume has been compiled to assist those involved, get to grips with the complex new laws, along with the regulations issued in terms of the Statutes.

(Nico Steytler holds the SARChI Chair in Multilevel Government, Law and Policy at the DOI, and Jaap de Visser is the Director of the DOI)

Tessema, M.T. Persecution of Politicide in Ethiopia: The Red Terror Trials (Springer, 2018) 303 pp.

This book investigates the road map or the transitional justice mechanisms that the Ethiopian government chose to confront the gross human rights violations perpetrated under the 17 years’ rule of the Derg, the dictatorial regime that controlled state power from 1974 to 1991. Furthermore, the author extensively examines the prosecution of politicide or genocide against political groups in Ethiopia. Dealing with the violent conflict, massacres, repressions and other mass atrocities of the past is necessary, not for its own sake, but to clear the way for a new beginning. In other words, ignoring gross human rights violations and attempting to close the chapter on an oppressive dictatorial past by choosing to let bygones be bygones, is no longer a viable option when starting on the road to a democratic future. For unaddressed atrocities and a sense of injustice would not only continue to haunt a nation but could also ignite similar conflicts in the future. So the question is what choices are available to the newly installed government when confronting the evils of the past. There are a wide array of transitional mechanisms to choose from, but there is no “one size fits all” mechanism. Of all the transitional justice mechanisms, namely truth commissions, lustration, amnesty, prosecution, and reparation, the Ethiopian government chose prosecution as the main means for dealing with the horrendous crimes committed by the Derg regime. One of the formidable challenges for transitioning states in dealing with the crimes of former regimes is an inadequate legal framework by which to criminalize and punish egregious human rights violations. With the aim of examining whether or not Ethiopia has confronted this challenge, the book assesses Ethiopia’s legal framework regarding both crimes under international law and individual criminal responsibility. This book will be of great relevance to academics and practitioners in the areas of genocide studies, international criminal law and transitional justice. Students in the fields of international criminal law, transitional justice and human rights will also find relevant information on the national prosecution of politicide in particular and the question of confronting the past in general.

(Marshet Tadesse Tessema is Assistant Professor of the Law School, College of Law and Governance at Jimma University in Ethiopia, and Postdoctoral Fellow of the South African-German Centre, University of the Western Cape in South Africa)

Van Reenen S. and De Ville, J. Translation of Jacques Derrida Before the Law: The Complete text of Préjugés (University of Minnesota Press, 2018) 78 pp.

“How to judge—Jean-François Lyotard?” It is from this initial question that one of France’s most heralded philosophers of the twentieth century begins his essay on the origin of the law, of judgment, and the work of his colleague Jean-François Lyotard. If Jacques Derrida begins with the term préjugés, it is in part because of its impossibility to be rendered properly in other languages and also contain all its meanings: to pre-judge, to judge before judging, to hold prejudices, to know “how to judge,” and more still, to be already prejudged oneself. Striving to contain that which comes before the law, that is in front of the law and also prior to it, how to judge Jean-François Lyotard then becomes perhaps a beneficial attempt for Derrida to explore humanity’s rapport with judgment, origins, and naming. For how does one come to judge the author of the Differend? How does one abstain from judgment to accept the term préjugés as suspending judgment and at once as taking into account the impossibility of speaking before the law, prior to naming or judging? If this task indeed seems insurmountable, it is the site where Lyotard’s work itself is played out. Hence this sincere and intriguing essay presented by Jacques Derrida, published here for the first time in English.

(Jacques de Ville is Dean of the Law Faculty, UWC)