Incorporating Afrocentric alternative dispute resolution in South Africa’s clinical legal education

Since its inception, South African clinical legal education has remained steeped in the promotion of the Western adversarial model of resolving legal disputes with minimal consideration for Alternative Dispute Resolution (ADR). This dearth in legal development has ignited the argument that South African legal education is faulty, focusing on producing theory orientated graduates devoid of practical critical thinking skills and client empathy. Decolonising the manner in which law students are taught for practice to assuage these concerns through clinical legal education is overdue. This article explores the utility of ADR systems in the legal clinic as an instrument for skills transfer to students in order to prepare a competent and skilled law graduate. It argues that the introduction of ADR undergirded by African epistemic norms and the philosophy of ubuntu has the potential to re-make South African clinical education into an Afrocentric centred phenomenon, which is in harmony with societal boni mores

Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right

This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores.National Research Foundatio

Passive scalar convection in 2D long-range delta-correlated velocity field: Exact results

The letter presents new field-theoretical approach to 2D passive scalar problem. The Gaussian form of the distribution for the Lyapunov exponent is derived and its parameters are found explicitly.Comment: 11 pages, RevTex 3.0, IFUM-94/455/January-F

Loop models on random maps via nested loops: case of domain symmetry breaking and application to the Potts model

We use the nested loop approach to investigate loop models on random planar maps where the domains delimited by the loops are given two alternating colors, which can be assigned different local weights, hence allowing for an explicit Z_2 domain symmetry breaking. Each loop receives a non local weight n, as well as a local bending energy which controls loop turns. By a standard cluster construction that we review, the Q = n^2 Potts model on general random maps is mapped to a particular instance of this problem with domain-non-symmetric weights. We derive in full generality a set of coupled functional relations for a pair of generating series which encode the enumeration of loop configurations on maps with a boundary of a given color, and solve it by extending well-known complex analytic techniques. In the case where loops are fully-packed, we analyze in details the phase diagram of the model and derive exact equations for the position of its non-generic critical points. In particular, we underline that the critical Potts model on general random maps is not self-dual whenever Q \neq 1. In a model with domain-symmetric weights, we also show the possibility of a spontaneous domain symmetry breaking driven by the bending energy.Comment: 44 pages, 13 figure

A critical assessment of credit provision governance in South Africa with a focus on balancing the rights and responsibilities of credit providers and consumers under Section 129 of the National Credit Act 34 of 2005

The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively.Thesis (LLD) -- Faculty of Law, 202

By the Black Ditch: archaeological discoveries at Rustington, Littlehampton,West Sussex

A series of archaeological investigations were undertaken on land south of the A259 New Road, Littlehampton, in advance of commercial redevelopment. The earliest activity comprised a Middle Bronze Age enclosure, field boundary ditch and burnt mound. The burnt mound included an associated hearth, trough and waterhole. Later activity included a prehistoric droveway and Late Iron Age/Roman field boundary ditches

Massive Field-Theory Approach to Surface Critical Behavior in Three-Dimensional Systems

The massive field-theory approach for studying critical behavior in fixed space dimensions $d<4$ is extended to systems with surfaces.This enables one to study surface critical behavior directly in dimensions $d<4$ without having to resort to the $\epsilon$ expansion. The approach is elaborated for the representative case of the semi-infinite |\bbox{\phi}|^4 $n$-vector model with a boundary term {1/2} c_0\int_{\partial V}\bbox{\phi}^2 in the action. To make the theory uv finite in bulk dimensions $3\le d<4$, a renormalization of the surface enhancement $c_0$ is required in addition to the standard mass renormalization. Adequate normalization conditions for the renormalized theory are given. This theory involves two mass parameter: the usual bulk `mass' (inverse correlation length) $m$, and the renormalized surface enhancement $c$. Thus the surface renormalization factors depend on the renormalized coupling constant $u$ and the ratio $c/m$. The special and ordinary surface transitions correspond to the limits $m\to 0$ with $c/m\to 0$ and $c/m\to\infty$, respectively. It is shown that the surface-enhancement renormalization turns into an additive renormalization in the limit $c/m\to\infty$. The renormalization factors and exponent functions with $c/m=0$ and $c/m=\infty$ that are needed to determine the surface critical exponents of the special and ordinary transitions are calculated to two-loop order. The associated series expansions are analyzed by Pad\'e-Borel summation techniques. The resulting numerical estimates for the surface critical exponents are in good agreement with recent Monte Carlo simulations. This also holds for the surface crossover exponent $\Phi$.Comment: Revtex, 40 pages, 3 figures, and 8 pictograms (included in equations

Eddy length scales in the North Atlantic Ocean

Eddy length scales are calculated from satellite altimeter products and in an eddy-resolving model of the North Atlantic Ocean. Four different measures for eddy length scales are derived from kinetic energy densities in wave number space and spatial decorrelation scales. Observational estimates and model simulation agree well in all these measures near the surface. As found in previous studies, all length scales are, in general, decreasing with latitude. They are isotropic and proportional to the local first baroclinic Rossby radius (L r) north of about 30°N, while south of 30°N (or for L r > 30 km), zonal length scales tend to be larger than meridional ones, and (scalar) length scales show no clear relation to L r anymore. Instead, they appear to be related to the local Rhines scale. In agreement with a recent theoretical prediction by Theiss [2004], the observed and simulated pattern of eddy length scales appears to be indicative of two different dynamical regimes in the North Atlantic: anisotropic turbulence in the subtropics and isotropic turbulence in the subpolar North Atlantic. Both regions can be roughly characterized by the ration between L r and the Rhines scales (L R), with L R > L r in the isotropic region and L R < L r in the anisotropic region. The critical latitude that separates both regions, i.e., where L R = L r, is about 30°N

Disordered O(n) Loop Model and Coupled Conformal Field Theories

A family of models for fluctuating loops in a two dimensional random background is analyzed. The models are formulated as O(n) spin models with quenched inhomogeneous interactions. Using the replica method, the models are mapped to the $M\to 0$ limits of $M$-layered O(n) models coupled each other via $\phi_{1,3}$ primary fields. The renormalization group flow is calculated in the vicinity of the decoupled critical point, by an epsilon expansion around the Ising point ($n=1$), varying $n$ as a continuous parameter. The one-loop beta function suggests the existence of a strongly coupled phase ($0<n<n_*$) near the self-avoiding walk point ($n=0$) and a line of infrared fixed points ($n_*<n<1$) near the Ising point. For the fixed points, the effective central charges are calculated. The scaling dimensions of the energy operator and the spin operator are obtained up to two-loop order. The relation to the random-bond $q$-state Potts model is briefly discussed.Comment: 48 pages, 12 figures, uses iopar