The law of divorce and dissolution of life partnerships in South Africa: book review
- Authors: Kruuse, Helen
- Date: 2015
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54129 , vital:26394 , http://scholar.ufs.ac.za:8080/xmlui/handle/11660/2454
- Description: Jackie Heaton’s latest contribution to the family law domain is formidable – 777 pages of carefully crafted opinions and discussions of the law affecting divorce and dissolution of life partnerships. Given the range, diversity and depth of issues in this area, it is no wonder that she calls on those being among the best in their field to assist her in writing up the book.
- Full Text:
- Date Issued: 2015
- Authors: Kruuse, Helen
- Date: 2015
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54129 , vital:26394 , http://scholar.ufs.ac.za:8080/xmlui/handle/11660/2454
- Description: Jackie Heaton’s latest contribution to the family law domain is formidable – 777 pages of carefully crafted opinions and discussions of the law affecting divorce and dissolution of life partnerships. Given the range, diversity and depth of issues in this area, it is no wonder that she calls on those being among the best in their field to assist her in writing up the book.
- Full Text:
- Date Issued: 2015
Sailing between Scylla and Charybdis: Mayelane v Ngwenyama
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54118 , vital:26392 , https://www.ajol.info/index.php/pelj/article/view/112096
- Description: Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
- Full Text:
- Date Issued: 2014
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54118 , vital:26392 , https://www.ajol.info/index.php/pelj/article/view/112096
- Description: Mayelane v Ngwenyama 2013 4 SA 415 (CC) is arguably the most important judgment concerning the recognition of customary marriages in recent times. This article attempts to unpack some of the many issues that arise from the case, namely: (a) the practical difficulties associated with ascertaining living customary law and the problems of identifying legal versus social norms; (b) the meaning of consent as a requirement of a customary marriage; (c) the implications of the case for equality between multiple wives in a customary marriage, and as between wives across customary marriages of different cultural traditions; and (e) the implications of the case for equality considerations more broadly. While the authors sympathise with the court in respect of the complex decision before it, it questions the Court's method and result, specifically for the equality rights of a second (or further) "wife" in a Vatsonga customary marriage. The authors suggest that the issues should be put to democratic deliberation by the legislative arm, rather than leaving courts in the unenviable position of having to decide these matters.
- Full Text:
- Date Issued: 2014
Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54094 , vital:26389 , http://journals.co.za/content/ju_jur/2013/1/EJC148455
- Description: The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
- Full Text:
- Date Issued: 2013
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54094 , vital:26389 , http://journals.co.za/content/ju_jur/2013/1/EJC148455
- Description: The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
- Full Text:
- Date Issued: 2013
You reap what you sow : regulating marriages and intimate partnerships in a diverse post-apartheid society
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54152 , vital:26396 , https://tinyurl.com/yaughtn2
- Description: South Africa does not have a particularly proud history. Marred by the politics of separate but (un)equal treatment of its people, the country's past political system has had a damaging effect in all spheres, but specifically on that of the family. In the context of relationships, it is fair to say that the apartheid system was replicated in family law, with the Western 'white' monogamous marriage receiving the state's stamp of approval - leaving other relationships (customary, Muslim, homosexual, cohabiting etc) largely out in the cold.
- Full Text:
- Date Issued: 2013
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54152 , vital:26396 , https://tinyurl.com/yaughtn2
- Description: South Africa does not have a particularly proud history. Marred by the politics of separate but (un)equal treatment of its people, the country's past political system has had a damaging effect in all spheres, but specifically on that of the family. In the context of relationships, it is fair to say that the apartheid system was replicated in family law, with the Western 'white' monogamous marriage receiving the state's stamp of approval - leaving other relationships (customary, Muslim, homosexual, cohabiting etc) largely out in the cold.
- Full Text:
- Date Issued: 2013
A South African response to ethics in legal education
- Authors: Kruuse, Helen
- Date: 2011
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54174 , vital:26399 , https://www.routledge.com/The-Ethics-Project-in-Legal-Education/Robertson-Corbin-Tranter-Bartlett/p/book/9780415546515
- Description: The contributions in this volume suggest that "the ethics project in legal education" is increasingly an international one. Even though the strength of commitment by both the profession and the legal academy to "ethics learning" within law schools varies, two fundamental questions confront all who work in this area. First, what is it that we want our students to learn (or, perhaps, in what manner do we want our students to develop) from the teaching of "legal ethics"? Second, how can we create a learning environment that will encourage the nature and quality of learning we think is important?.
- Full Text: false
- Date Issued: 2011
- Authors: Kruuse, Helen
- Date: 2011
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54174 , vital:26399 , https://www.routledge.com/The-Ethics-Project-in-Legal-Education/Robertson-Corbin-Tranter-Bartlett/p/book/9780415546515
- Description: The contributions in this volume suggest that "the ethics project in legal education" is increasingly an international one. Even though the strength of commitment by both the profession and the legal academy to "ethics learning" within law schools varies, two fundamental questions confront all who work in this area. First, what is it that we want our students to learn (or, perhaps, in what manner do we want our students to develop) from the teaching of "legal ethics"? Second, how can we create a learning environment that will encourage the nature and quality of learning we think is important?.
- Full Text: false
- Date Issued: 2011
A South African response to ethics in legal education
- Authors: Kruuse, Helen
- Date: 2010
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54201 , vital:26403 , https://www.lehmanns.de/shop/recht-steuern/17056480-9780195985818-the-law-of-persons-in-south-africa?PHPSESSID=ogicv1k4dkbpi03lq53elurqh2
- Description: This book reflects the legislative change and consequent changes in common law that fundamentally affect the law of persons, in particular the Children's Act of 2007 and the application of the constitution.
- Full Text: false
- Date Issued: 2010
- Authors: Kruuse, Helen
- Date: 2010
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54201 , vital:26403 , https://www.lehmanns.de/shop/recht-steuern/17056480-9780195985818-the-law-of-persons-in-south-africa?PHPSESSID=ogicv1k4dkbpi03lq53elurqh2
- Description: This book reflects the legislative change and consequent changes in common law that fundamentally affect the law of persons, in particular the Children's Act of 2007 and the application of the constitution.
- Full Text: false
- Date Issued: 2010
'Fetal "rights"? The need for a unified approach to the fetus in the context of feticide'
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54163 , vital:26397 , https://store.lexisnexis.co.za/products/tydskrif-vir-hedendaagse-romeinshollandse-reg-journal-of-contemporary-romandutch-law-skuZASKU9780409079241/details
- Description: The issues of fetal protection, fetal rights and the status of unborn life have been debated on a variety of levels in a variety of disciplines over the past centuries. One needs only think of John Milton who asked the “hard” question: “For man to tell how human life began / Is hard: for who himself beginning knew?” (Paradise lost (1667) Bk 8 251–252). While the issue of fetal rights most often arises in abortion debates, the issue of fetal rights in the context of feticide has received scant attention in South Africa. (For a thought-provoking general discussion of fetal rights, see Du Plessis “Jurisprudential reflections on the status of unborn life” 1990 TSAR 44; Van Niekerk (ed) The status of prenatal life (1991) and Kahn (ed) The sanctity of human life (1983).) This note seeks to initiate a discussion on the current legal position in South Africa in respect of feticide.
- Full Text:
- Date Issued: 2009
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54163 , vital:26397 , https://store.lexisnexis.co.za/products/tydskrif-vir-hedendaagse-romeinshollandse-reg-journal-of-contemporary-romandutch-law-skuZASKU9780409079241/details
- Description: The issues of fetal protection, fetal rights and the status of unborn life have been debated on a variety of levels in a variety of disciplines over the past centuries. One needs only think of John Milton who asked the “hard” question: “For man to tell how human life began / Is hard: for who himself beginning knew?” (Paradise lost (1667) Bk 8 251–252). While the issue of fetal rights most often arises in abortion debates, the issue of fetal rights in the context of feticide has received scant attention in South Africa. (For a thought-provoking general discussion of fetal rights, see Du Plessis “Jurisprudential reflections on the status of unborn life” 1990 TSAR 44; Van Niekerk (ed) The status of prenatal life (1991) and Kahn (ed) The sanctity of human life (1983).) This note seeks to initiate a discussion on the current legal position in South Africa in respect of feticide.
- Full Text:
- Date Issued: 2009
'Here's to you, Mrs Robinson' : peculiarities and paragraph 29 in determining the treatment of domestic partnerships
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: vital:26388 , http://hdl.handle.net/10962/54083
- Description: There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct. The law is one of the important architects of social norms. At times, it can be a tool to solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other times, the law is an anchor and a constraint upon social and ideological advances. With regards to equality and non-traditional partnerships, it seems that law falls into this latter category.
- Full Text:
- Date Issued: 2009
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: vital:26388 , http://hdl.handle.net/10962/54083
- Description: There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct. The law is one of the important architects of social norms. At times, it can be a tool to solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other times, the law is an anchor and a constraint upon social and ideological advances. With regards to equality and non-traditional partnerships, it seems that law falls into this latter category.
- Full Text:
- Date Issued: 2009
Drawing Lines in the Sand: AM v RM 2010 2 SA 223 (ECP)
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54107 , vital:26391 , http://www.ufh.ac.za/speculumjuris/files/pdf/SpeculumJuris_2009_Part_2.pdf
- Description: Judge Elna Revelas’s decision in the case of Mohamed v Mohamed 1 may be described as one of those run-of-the-mill applications in terms of rule 43 which are routinely heard on motion court days in any one of our high courts across the country. This case note suggests that her decision belies such a description. Instead, this note suggests that her decision marks a move away from existing jurisprudence on Muslim marriages in a way which may undermine, rather than promote, the recognition and respect for the marriage institutions of different religious systems and beliefs. I tentatively suggest that by granting the rule 43 application the court may have effectively imposed civil marriage obligations on a religious marriage even though the parties had not concluded a marriage in terms of the Marriage Act.2 As such, the decision has potentially radical consequences for parties in Muslim marriages and highlights the complex issues that courts have had to face in the last two decades without any guiding legislation. In order to understand the judgment properly, its context has to be considered. This context includes (1) the numerous judgments extending protection to women in Muslim marriages in the last two decades against the backdrop of the coming into effect of the Constitution of the Republic of South Africa, 1996; and (2) the application by the Women’s Legal Centre Trust (hereafter “WLCT”) to the Constitutional Court to force the President and Parliament to enact legislation to recognise and protect Muslim marriages.
- Full Text:
- Date Issued: 2009
- Authors: Kruuse, Helen
- Date: 2009
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54107 , vital:26391 , http://www.ufh.ac.za/speculumjuris/files/pdf/SpeculumJuris_2009_Part_2.pdf
- Description: Judge Elna Revelas’s decision in the case of Mohamed v Mohamed 1 may be described as one of those run-of-the-mill applications in terms of rule 43 which are routinely heard on motion court days in any one of our high courts across the country. This case note suggests that her decision belies such a description. Instead, this note suggests that her decision marks a move away from existing jurisprudence on Muslim marriages in a way which may undermine, rather than promote, the recognition and respect for the marriage institutions of different religious systems and beliefs. I tentatively suggest that by granting the rule 43 application the court may have effectively imposed civil marriage obligations on a religious marriage even though the parties had not concluded a marriage in terms of the Marriage Act.2 As such, the decision has potentially radical consequences for parties in Muslim marriages and highlights the complex issues that courts have had to face in the last two decades without any guiding legislation. In order to understand the judgment properly, its context has to be considered. This context includes (1) the numerous judgments extending protection to women in Muslim marriages in the last two decades against the backdrop of the coming into effect of the Constitution of the Republic of South Africa, 1996; and (2) the application by the Women’s Legal Centre Trust (hereafter “WLCT”) to the Constitutional Court to force the President and Parliament to enact legislation to recognise and protect Muslim marriages.
- Full Text:
- Date Issued: 2009
Social Services and Benefits
- Authors: Kruuse, Helen
- Date: 2008
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54211 , vital:26405 , https://store.lexisnexis.co.za/products/family-law-service-skuZASKUPG642
- Description: Family Law Service is a subscription based product including both the printed loose-leaf and LexisMobile publications. Updates for 12 months (print and mobile) are included in the price. Family Law Service covers aspects of law pertaining to the family, including domestic violence, the Law of Islam, same- sex life partnerships, the effects of the Children's Act, 2008 and anti-trafficking law in South Africa. Family Law Service is maintained in three volumes with commentary and legislation, and with two service issues published a year.
- Full Text: false
- Date Issued: 2008
- Authors: Kruuse, Helen
- Date: 2008
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54211 , vital:26405 , https://store.lexisnexis.co.za/products/family-law-service-skuZASKUPG642
- Description: Family Law Service is a subscription based product including both the printed loose-leaf and LexisMobile publications. Updates for 12 months (print and mobile) are included in the price. Family Law Service covers aspects of law pertaining to the family, including domestic violence, the Law of Islam, same- sex life partnerships, the effects of the Children's Act, 2008 and anti-trafficking law in South Africa. Family Law Service is maintained in three volumes with commentary and legislation, and with two service issues published a year.
- Full Text: false
- Date Issued: 2008
The Emerging Role of ubuntu-botho in Developing a Consensual South African Legal Culture
- Authors: Kruuse, Helen , Midgley, Rob
- Date: 2007
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54224 , vital:26413 , https://dspace.library.uu.nl/handle/1874/27652
- Description: Legal culture in apartheid South Africa has variously been described as conservative and positivist, with judicial deference to the executive and to parliamentary sovereignty; formalistic, technical and authoritarian; and ‘of reasoned argument’ and justification. Until 1994, law drew its legitimacy from the very fact that it was state sanctioned, and the material context or the social aftermath of the application of a rule was in many instances deemed irrelevant. However, the adoption, first, of the interim Constitution, and later the final Constitution, saw a desire to transform this legal culture. The Constitution is now more than a formal document regulating public power: it also embodies a normative value system in terms of which judges are called upon to interpret laws and their application.
- Full Text:
- Date Issued: 2007
- Authors: Kruuse, Helen , Midgley, Rob
- Date: 2007
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54224 , vital:26413 , https://dspace.library.uu.nl/handle/1874/27652
- Description: Legal culture in apartheid South Africa has variously been described as conservative and positivist, with judicial deference to the executive and to parliamentary sovereignty; formalistic, technical and authoritarian; and ‘of reasoned argument’ and justification. Until 1994, law drew its legitimacy from the very fact that it was state sanctioned, and the material context or the social aftermath of the application of a rule was in many instances deemed irrelevant. However, the adoption, first, of the interim Constitution, and later the final Constitution, saw a desire to transform this legal culture. The Constitution is now more than a formal document regulating public power: it also embodies a normative value system in terms of which judges are called upon to interpret laws and their application.
- Full Text:
- Date Issued: 2007
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