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Browsing Law by Author "Erusmus, M.G."
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- ItemJuridical analysis and critical evaluation of ilobolo in a changing Zulu society(1983) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Kemp, J.K.Four years ago I had the rare honour of being requested to be an umkhongi in three separate marriage negotiations. In the course of these negotiations I was particularly struck by the zeal with which ilobolo was demanded and by the disparity in the amounts demanded. Although I was no stranger to ilobolo, this set me thinking as to what is the significance of ilobolo in both the traditional and modern Zulu society. Here was sown the seeds that gave rise to the present research. It is a modest attempt at examining the position of ilobolo today in its historical perspective and in a society that 1s in transition. Although various contributions on ilobolo have been made by eminent authors, it is a contribution from one who has not only studied the institution but who is also part of the community that practices it. It is hoped that it will add another dimension to the existing literature on this eminent institution. The approach followed here is eminently jural and comparative although recourse is also had to the popular views owing to the limitations of the jural approach. To deviate a little: there are two mistaken assumptions which are often held in relation to a person who shows interest in the scientific study of customary law: one is that customary law is either dead or should be allowed to die natural death. Concern with it is regarded as merely an academic Exercise of little or no value; the other assumption is that interest in the systematic study of customary law lends inadvertent support to the government's policy of entrenching tribalism and of wanting the "Natives" to live according to "Native law". In answer to this the words of Ramolefe (AMR Ramolefe "Sesotho marriage, guardianship and the customary heir" in M Gluckman (ed) Ideas and procedures in African customary law (1969) 197) are particularly appropriate; "Customary law is now my devoted study, not because I willed it so, nor because I am one with those who bleat: 'Let the natives develop along their own lines; but because up in the Maluti Mountains, and in several pockets of lowland-dwellers custom is very much still ~ law and no amount of contempt for it by others can alter this fact". Customary law is still very much alive. Even blacks who are westernized are in varying degrees subject to customary law. The institution of ilobolo is ample evidence of this. Even if a black marries by civil rights that marriage will not in all respects produce consequences similar to those for a marriage of a white person. On all these blacks need legal advice. History has proved that a legal system of a people does not become extinguished by acculturation. Although many institutions may die and decay, others are resilient and the society can only build its legal system on them. The present Roman-Dutch law which is the common~ law of South Africa is a classic example. It is a synthesis of two legal systems: Roman law and Germanic customary law. Their synthesis was precipitated by the hard labours of the jurists of the Middle Ages, the Glossators and Post-Glossators. It is the duty of lawyers to facilitate a new legal dispensation for Southern Africa. What is more, customary law is changing. It is the duty of the lawyers to give effect in the law to these changes by giving decisions that will update customary law and by drafting legislation to modify the existing law. This obviously requires a scientific study of customary law. It was in this spirit that the present research was undertaken.
- ItemProof beyond a reasonable doubt(1998) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Milton, J.R.L.Proof beyond a reasonable doubt is the standard of proof that is applied in criminal cases. The burden of proving the guilt of the accused in this manner rests on the state, and does not shift to the accused. This is in contrast to the evidential burden which may shift to the accused to rebut a case against him or her. There have, however, been statutory exceptions where the burden shifted to the accused. But this has been changed by the Constitution. The rule has ideological and philosophical underpinnings. Criminal law is an awe-inspiring aspect of the law the enforcement of which could lead to the deprivation of the liberty of a person. Personal liberty in Western society is a cherished value so that its deprivation should result if the state has proved beyond a reasonable doubt that the accused is guilty. This is often concretised in the saying that it is better for a hundred guilty persons to go free than that one innocent person be found guilty. The rule that the state has to prove the guilt of the accused beyond a reasonable doubt originated from English law during the eighteenth century and it was aimed at protecting the individual against the abuse of state power. Although this is a long-standing rule, there has been no clear definition of this rule either in English law or South African law. The duty to prove the guilt of the accused beyond a reasonable doubt extends to every element of the offence. There are instances where this may not be the case. These are cases where judicial notice is taken of certain facts or where there is strict liability and it is therefore not necessary to prove the existence of mens rea especially in the form of intention. Although these do not completely dispense with the requirement of proving the guilt of the accused, they result in the reduction of this burden. In a number of legislative enactments, in the past the burden of proof was shifted to the accused through the use of presumptions. Not all presumptions had this effect but only those where the accused was presumed guilty because of the existence of certain facts and hadto prove his or her innocence beyond a reasonable doubt. This is called the reverse onus. The Constitutional Court decided that these were in conflict with the provisions of sections 25 and 35 of the interim and final Constitutions respectively which, inter alia, provide for the right to silence and the presumption of innocence. Consequently these have been declared invalid as being unconstitutional. In this way the Constitution has been interpreted to affirm the core democratic values of liberty, equality and human dignity. Although the standard of proof beyond a reasonable doubt has been used, it has not been clearly defined. Proof beyond a reasonable doubt can be regarded as proof which should convince a reasonable fact finder after considering all the relevant evidence that the accused is guilty of the offence with which he is charged. This proof must be based on evidence and not merely on intuition or belief otherwise it is not a standard at all.