Research Articles (Private Law)

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Browsing Research Articles (Private Law) by Author "Erasmus, H. J."

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    Circuit courts in the Cape Colony during the nineteenth century : hazards and achievements
    (UNISA Press, 2013) Erasmus, H. J.
    The circuit courts established by the Earl of Caledon in 1811 introduced the fundamental features characteristic of proceedings at common law to the Cape and thus constitute an important precursor to the Charters of Justice of 1827 and 1832. They also paved the way for the circuit courts established in 1827 under the First Charter of Justice, the predecessors of the circuit courts which to this day form part of the legal landscape in South Africa. During the nineteenth century, judges of the Cape Supreme Court regularly visited outlying towns and districts to hear both civil and criminal cases. The circuits lasted for weeks and long distances were travelled under primitive and hazardous conditions. The judges and counsel often had to endure great physical hardship. They all stuck to their task with commendable tenacity and perseverance. In the circumstances, the contribution of the Cape judges to the development of South African law and to the survival of the Roman-Dutch law was a remarkable achievement. The circuit courts brought to the outlying districts the administration of justice at the highest level. The sittings of the courts were open to the public, and the community participated in the proceedings by way of jury service. All this contributed to the integration of the administration of justice into the social fabric and "judicial conscience" of the people in the outlying communities. The circuit courts played a major role in entrenching the English procedural and judicial style in the minds of the people, and in bringing home the message that the courts were open to all the people of the colony, and that the protection of the courts extended to all of them.
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    Judicial case management and the adversarial mindset - the new Namibian rules of court
    (Juta Law, 2015-01) Erasmus, H. J.
    On 16 April 2014 a new set of civil procedure rules came into operation in Namibia. The "overriding objective" of the rules is "to facilitate the resolution of the real issues in a dispute justly and speedily, efficiently and cost effectively by - (a) ensuring that the parties are on an equal footing; (b) saving costs by among others, limiting interlocutory proceedings to what is strictly necessary in order to achieve a fair and timely disposal of a cause or matter; (c) dealing with a case in ways which are proportionate to (i) the amount or value of the monetary claim involved; (ii) the importance of the cause; (iii) the complexity of the issues and the financial position of the parties; (d) ensuring that causes are dealt with expeditiously and fairly; (e) recognising that judicial time and resources are limited and therefore allotting to each cause an appropriate share of the court's resources, while at the same time taking into account the need to allot resources to other causes; and (f) considering the public interest in limiting issues in dispute and in the early settlement of disputes by agreement between the parties in dispute."
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    Judicial review of inferior court proceedings - or, the ghost of prerogative writs in South African law
    (Juta Law, 2015-01) Erasmus, H. J.
    Superior courts in South Africa have statutory powers to review the proceedings of inferior courts within their jurisdiction. The proceedings of superior courts are not so reviewable. Thus it was held in Gentiruco AG v Firestone SA (Pty) Ltd that it was common cause that the proceedings of the (then) supreme court "are not reviewable; the only remedy of an unsuccessful litigant is an appeal. The reason is that by statute only 'the proceedings of inferior courts' have been and are reviewable." The position is restated in Vereniging van Bo-Grondse Mynamptenare van SA v President of the Industrial Court: "Apart from the inherent power of the Supreme Court to review the proceedings of domestic tribunals other than courts of law, by statute only the proceedings of inferior courts have been and are reviewable by a Provincial or Local Division of the Supreme Court... ." The question as to the rationale of this statutory distinction between lower and higher courts has never been raised, let alone answered. Why should the proceedings of an inferior court be reviewable by a higher court, but the proceedings of a high court not be reviewable by a court higher in the hierarchy? Section 16(1) of the Namibian Supreme Court Act 15 of 1990, which confers upon the Namibian supreme court "jurisdiction to review the proceedings of the high court or any lower court", is indicative of the fact that there need not in principle be insuperable obstacles and objections to subjecting the proceedings of a high court to review. Any quest for the answer to the question must have as its starting point the historical context within which the statutory provisions in question originally came into being.