The South African Doctrine of Notice: a comparative law perspective

The doctrine of notice was received into South African law in Cohen v Shires, Mchattie and King (1881-1884) 1 SAR TS 41 by reference to a 17th century Dutch decision and English equity.The reception of the polar star of equity has led to doctrinal problems and differing views as to requirements for the operation of the doctrine ever since. This is illustrated in the decision of the Supreme Court of Appeal in Meridian Bay Restaurant (Pty) Ltd v Mitchell 2011 (4) SA 1 (SCA). The Court mentioned fraud and equity as the doctrinal basis but also accepted the view that the doctrine is an anomaly which does not fit into the principles of either the law of delict or property law.The Court required actual notice (or dolus eventualis) and wrongfulness for the operation of the doctrine of notice. In the following discussion of the decision it is argued that for the operation of the doctrine it should be required that: (a) a prior personal right aimed at the acquisition of a real right existed; (b) a holder of a subsequent personal right was actually aware or foresaw the possibility of the existence of the prior personal right; and (c) the holder of the real right nonetheless infringed upon the prior personal right by concluding a subsequent contract and obtaining registration of the real right in the deeds office.

'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

The age of ‘depoliticisation’ and ‘dejuridification’ and its ‘logic of assembling’: an essay against the instrumentalist use of comparative law’s geopolitics

While comparative law has become a key discipline, its instrumentalist use has turned out to be a powerful weapon: it is the ‘pen’ by which the identity of and differences in law’s geopolitics are continually written and rewritten. Given its attractive functionalist essence, comparative law is gaining increasing international credit as a way of developing newer theories of sovereignty and governance in a framework in which law is conceived of less as a set of rules and more as a symbolic vestimentum of global soft power. The present contribution critically investigates the relationship between distortive views of comparative law’s geopolitics and the intimate essence of the doctrine aimed at creating the ‘aspatial’, unbounded, illimitable (and hence intangible) liberal global order whose governance appears to transcend the idea and form(s) of law through which the ‘politicization’ and ‘juridification’ of modernity have been achieved in the last century. In doing so, it also addresses why such an alliance has made it easier to ‘discover’ and ‘sell’ the smooth and rectilinear land of the figuratively unspoken and unwritten as the terra incognita that lies over what is created by the constructivist political intervention(s) of the modern nation-state

National security, surveillance and terror: Canada and Australia in comparative perspective

This edited collection brings together leading scholars to comparatively investigate national security, surveillance and terror in the early 21st century in two major western jurisdictions, Canada and Australia. Observing that much debate about these topics is dominated by US and UK perspectives, the volume provides penetrating analysis of national security and surveillance practices in two under-studied countries that reveals critical insights into current trends. Written by a wide range of experts in their respective fields, this book addresses a fascinating array of timely questions about the relationship among national security, privacy and terror in the two countries and beyond. Chapters include critical assessments of topics such as: National Security Intelligence Collection since 9/11, The Border as Checkpoint in an Age of Hemispheric Security and Surveillance, Unmanned Aerial Vehicles and Law Enforcement, as well as Federal Government Departments and Security Regimes. An engaging and empirically driven study, this collection will be of great interest to scholars of security and surveillance studies, policing, and comparative criminology.

Principles of contemporary corporate governance

Aims at providing a concise presentation of key topics and emerging themes in corporate governance. The text provide both law and business students, as well as practitioners of law and management, with an easy to follow explanation and analysis of key corporate governance principles.

Asian socialism & legal change : the dynamics of Vietnamese and Chinese reform

The immense process of economic and social transformation currently underway in China and Vietnam is well known & extensively documented. Less attention has been devoted to the critical process of Chinese & Vietnamese legal change In a unique comparative approach this book analyses recent developments in the legal sphere in China & Vietnam.

Principles of contemporary corporate governance

Aims at providing a concise presentation of key topics and emerging themes in corporate governance. The text provide both law and business students, as well as practitioners of law and management, with an easy to follow explanation and analysis of key corporate governance principles.

Business relationship development and management in China

The Australian Government's White Paper on Australia in the Asian Century, released in October 2012, is based on the premise that the transformation of the Asian region into the world's economic powerhouse is not only unstoppable, it is gathering pace. Asia's extraordinary ascent has already changed the Australian economy, society and strategic environment. Within a few years, Asia will be the world's largest producer of goods and services, as well as the largest consumer market and the home of the majority of the world's middle class. The White Paper notes that thriving in the Asian century requires the Australian nation to have a clear plan to seize the economic opportunities and manage the strategic challenges that will arise, by taking a farsighted approach focused on fairness. To do so, Australians must be Asia-literate and Asia-capable, with a thorough understanding of Asian cultures and languages. These capabilities are needed to build stronger connections and partnerships across the region. Australia's commercial success in the region requires that highly innovative, competitive Australian firms and institutions develop collaborative relationships with others m the region. Australian firms need new business models and new mind-sets to operate and connect with Asian markets. Against this backdrop, this chapter discusses several important issues relating to Australian firms developing and managing their business relationships in China, in the context of urban planning, architecture, civil engineering and construction. The chapter examines the Chinese business environment, in terms of guanxi, business opportunities, risks and strategies, in a case study of the successful partnerships established to manage the 'Water Cube' for the Beijing Olympic Games in 2008.

Legal pluralism and progressive constitutionalism: An introduction to the South African challenge for post-national governace

The aim of this article is to contribute to the current academic debate on pluralistmechanisms of post-national governance as a particular type of ‘stateless law’. Moreprecisely, this article is conceived as an introduction to aid further research on the shape(and extent) that post-national governance may eventually assume (and reach) in SouthAfrica. Attention is, therefore, paid to legal pluralism as a key factor of pluralist settings ofpost-national government. An overview of the essence and features of post-nationalgovernance is provided, and a brief comparison is made between hard hierarchical andsoft-networked forms of governance. In pursuing the suggested roadmap, reference is madeto the current European landscape on post-national governance, which is ontologicallyinevitable in discussing the essence, structure, aims, challenges and limitations ofpost-national governance. Moreover, the necessity of adopting a comparative modusinvestigandi is due to the circumstance that although South Africa and the EuropeanUnion (EU) share important elements (e.g., legal pluralism, financial instability andfuture common challenges), South Africa has an extremely progressive constitution — aresult that the EU has been unable to achieve formally. Thus, while explaining whySouth Africa may represent fertile ground for such an architecture of governance, this articlediscusses why the South African Constitution may be a ‘value add’ that may help post-national governance avoid the difficulties thus far encountered on the Europeancontinent.