Legal ethics education in South Africa: possibilities, challenges and opportunities
- Robertson, Michael, Kruuse, Helen
- Authors: Robertson, Michael , Kruuse, Helen
- Date: 2016
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68941 , vital:29341 , http://dx.doi.org/10.1080/02587203.2016.1210934
- Description: Publisher version , The South African legal profession has been subject to harsh criticism in the last few years, leading to what some have called ‘an ethical crisis.’ Although this perception may or may not be warranted, there have been numerous calls for improved ethical legal practices by South African lawyers. This article seeks to contribute to a discussion about the importance of implementing legal ethics education in South African law schools. The authors (a) explore the meaning of ‘ethical legal practice’ by reference to the international literature; (b) examine the way in which legal ethics has so far been presented in the limited South African literature on the topic; (c) argue the need for a more thorough and critical literature on South African lawyers’ ethics, coupled with a commitment to developing a stronger legal ethics culture within the profession and the legal academia; and (d) suggest a possible approach for South African legal ethics education in the future, with reference to recent developments in other countries.
- Full Text: false
- Date Issued: 2016
- Authors: Robertson, Michael , Kruuse, Helen
- Date: 2016
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68941 , vital:29341 , http://dx.doi.org/10.1080/02587203.2016.1210934
- Description: Publisher version , The South African legal profession has been subject to harsh criticism in the last few years, leading to what some have called ‘an ethical crisis.’ Although this perception may or may not be warranted, there have been numerous calls for improved ethical legal practices by South African lawyers. This article seeks to contribute to a discussion about the importance of implementing legal ethics education in South African law schools. The authors (a) explore the meaning of ‘ethical legal practice’ by reference to the international literature; (b) examine the way in which legal ethics has so far been presented in the limited South African literature on the topic; (c) argue the need for a more thorough and critical literature on South African lawyers’ ethics, coupled with a commitment to developing a stronger legal ethics culture within the profession and the legal academia; and (d) suggest a possible approach for South African legal ethics education in the future, with reference to recent developments in other countries.
- Full Text: false
- Date Issued: 2016
Unfulfilled promises: the implementation of the Recognition of Customary Marriages Act in South Africa
- Mwambene, Lea, Kruuse, Helen
- Authors: Mwambene, Lea , Kruuse, Helen
- Date: 2015
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129175 , vital:36227 , DOI:10.1093/lawfam/ebv009
- Description: The Recognition of Customary Marriages Act 1998 (the Act) regulates all matters in relation to customary marriages in South Africa. The Act was specifically enacted to recognize customary marriages as valid, but was also passed to address gender inequality by regulating various customary marriage aspects, the most important being registration and proprietary consequences. This article reflects on the findings of a qualitative study on the registration and proprietary consequences of customary marriages conducted in two rural sites in the Eastern Cape (the former Ciskei and Transkei) and one urban site in the Western Cape (Khayelitsha). These findings show two important issues. First, that access to resources upon death of a spouse or divorce is often premised on successful registration of the marriage, which seldom occurs. Secondly, that the continued patriarchal nature of customary marriages stands in the way of realizing gender equality, particularly in relation to the proprietary consequences of a marriage. As a result, we make possible recommendations of how the Act’s objectives can be met.
- Full Text: false
- Date Issued: 2015
- Authors: Mwambene, Lea , Kruuse, Helen
- Date: 2015
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129175 , vital:36227 , DOI:10.1093/lawfam/ebv009
- Description: The Recognition of Customary Marriages Act 1998 (the Act) regulates all matters in relation to customary marriages in South Africa. The Act was specifically enacted to recognize customary marriages as valid, but was also passed to address gender inequality by regulating various customary marriage aspects, the most important being registration and proprietary consequences. This article reflects on the findings of a qualitative study on the registration and proprietary consequences of customary marriages conducted in two rural sites in the Eastern Cape (the former Ciskei and Transkei) and one urban site in the Western Cape (Khayelitsha). These findings show two important issues. First, that access to resources upon death of a spouse or divorce is often premised on successful registration of the marriage, which seldom occurs. Secondly, that the continued patriarchal nature of customary marriages stands in the way of realizing gender equality, particularly in relation to the proprietary consequences of a marriage. As a result, we make possible recommendations of how the Act’s objectives can be met.
- Full Text: false
- Date Issued: 2015
Conscientious objection to performing same-sex marriage in South Africa
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129186 , vital:36228 , https://doi.org/10.1093/lawfam/ebu001
- Description: This article considers whether public servants should be exempt from South Africa’s equality provisions and anti-discrimination legislation in solemnizing same-sex marriages. In order to deal with this question, the article analyses the treatment of freedom of conscience and conscientious objection by comparing the solemnization of same-sex marriage by public servants, with another public service: that of terminations of pregnancy. While each situation will inevitably turn on the particular circumstances of the case, I argue that there should be a content-neutral guiding principle (as well as consistency) in dealing with these situations. The issue in each situation is narrowed to whether a civil servant’s personal convictions can override the state’s secular obligations in providing a service, and whether there is room for a qualified right to conscientious objection. By analysing the matter in this way, it is clear that the unqualified statutory exemption clause in South Africa’s Civil Union Act is constitutionally objectionable.
- Full Text: false
- Date Issued: 2014
- Authors: Kruuse, Helen
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129186 , vital:36228 , https://doi.org/10.1093/lawfam/ebu001
- Description: This article considers whether public servants should be exempt from South Africa’s equality provisions and anti-discrimination legislation in solemnizing same-sex marriages. In order to deal with this question, the article analyses the treatment of freedom of conscience and conscientious objection by comparing the solemnization of same-sex marriage by public servants, with another public service: that of terminations of pregnancy. While each situation will inevitably turn on the particular circumstances of the case, I argue that there should be a content-neutral guiding principle (as well as consistency) in dealing with these situations. The issue in each situation is narrowed to whether a civil servant’s personal convictions can override the state’s secular obligations in providing a service, and whether there is room for a qualified right to conscientious objection. By analysing the matter in this way, it is clear that the unqualified statutory exemption clause in South Africa’s Civil Union Act is constitutionally objectionable.
- Full Text: false
- Date Issued: 2014
Substantive second-level reasoning and experiential learning in legal ethics
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68983 , vital:29345 , https://hdl.handle.net/10520/EJC127082
- Description: Publisher version , This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
- Full Text: false
- Date Issued: 2012
- Authors: Kruuse, Helen
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/68983 , vital:29345 , https://hdl.handle.net/10520/EJC127082
- Description: Publisher version , This article takes a critical look at law teaching in South Africa and seeks to consider how the application of experiential learning theory may assist law students in gaining a deeper understanding of the law in general, and the complexities of real life practice in particular. While clinical legal education is often seen as the locus of experiential learning in law, the author proposes that well-structured simulations in class can achieve similar goals. The article comprises a description of the nature of experiential learning and a further description of the application of the principles of experiential learning in a particular simulation exercise in a Legal Ethics course (using the US case of Wash St Phys Ins Exch v Fisons Corp 858 P2d 1054 (Wash 1993) as a basis). The author posits that the so-called experiential learning "cycle" or "process" enables a process of learning which draws out the students' beliefs and ideas about a topic so that it can be examined, tested and integrated with new, more refined ideas. This notion is then in keeping with the expectation that students who emerge from higher education institutions have developed meta-cognitive skills. Essentially then, it is hoped that, by using the methods proposed in this article, students can then manage their own development and learning throughout life.
- Full Text: false
- Date Issued: 2012
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