To Wonderland Through the Looking-glass: Conceiving a Critical Legal Argument for Contractual Justice in the South African Law of Contract †

The aim of this paper is to identify the possible substructure (looking glass/es) of a critical legal argument for contractual justice (Wonderland) in the South African law of contract. South African contract law still fails, ten years after the constitutional transformation, to reflect the constitutional ideals of freedom, equality and human dignity in an acceptable manner. I argue that this disposition places a question mark over the legitimacy of contract law and marginalizes opportunities for the social change envisaged by the Constitution. The paper explores Duncan Kennedy’s Form and Substance-argument and indicates that the reluctance to accommodate these values may be attributable to the fact that the majority of role-players position themselves on the individualism/rules side of Kennedy’s continuum – a paradigm that perceives the law of contract as a body of positivistic rules to be applied neutrally and regardless of the social or socio-economic distortions its application may generate. In an attempt to move away from this traditional approach, the privileged paradigm is criticised. A typical CLS-approach is followed which employs sociology, psychological jurisprudence and game theory to criticise the law from outside the restrictive realms of law itself. Simultaneously, I attempt to illuminate the argument for a shift (step through the looking glass) to another paradigm. I conclude that our judiciary finds itself in a position similar to that of Plato’s prisoners in the cave and will not reach the point where they apply relevant (constitutional) values directly to contractual disputes. The State is thus responsible for infusing contract law with contractual justice, by implementing legislation to this effect in order to limit the hegemonic consequences of the judiciary’s obsession with freedom of contract and utopian rules, which fail in reality to further the ideal of justice. Paper presented at the Critical Legal Conference, 4 September 2004, London, UK. This paper is dedicated to the memory of the late Judge of Appeal, Mr. Justice P.J. Olivier. The paper is based on research conducted for the thesis in partial fulfilment of the degree LLD in the Faculty of Law at the University of Pretoria under the title ‘A critical legal argument for contractual justice in the South African law of contract.’ The degree supervisor is Professor Karin van Marle in the Department of Legal History, Comparative Law and Jurisprudence. The author wishes to thank the following persons for valuable deliberations and input: Karin van Marle, Graham Bradfield and Anashri Pillay. In addition, the author wishes to acknowledge and thank the University of Cape Town for financially supporting this research. †Paper presented at the Critical Legal Conference, 4 September 2004, London, UK. This paper is dedicated to the memory of the late Judge of Appeal, Mr. Justice P.J. Olivier. The paper is based on research conducted for the thesis in partial fulfilment of the degree LLD in the Faculty of Law at the University of Pretoria under the title ‘A critical legal argument for contractual justice in the South African law of contract.’ The degree supervisor is Professor Karin van Marle in the Department of Legal History, Comparative Law and Jurisprudence. The author wishes to thank the following persons for valuable deliberations and input: Karin van Marle, Graham Bradfield and Anashri Pillay. In addition, the author wishes to acknowledge and thank the University of Cape Town for financially supporting this research. apply relevant (constitutional) values directly to contractual disputes. The State is thus responsible for infusing contract law with contractual justice, by implementing legislation to this effect in order to limit the hegemonic consequences of the judiciary’s obsession with freedom of contract and utopian rules, which fail in reality to further the ideal of justice.     

Fatal salmonella aortitis with mycotic aneurysm rupture

Salmonellae most commonly cause uncomplicated cases of gastroenteritis but have a predilection for damaged blood vessels, especially those damaged by atherosclerosis. The abdominal aorta is most frequently affected. The most serious complication of aortitis is mycotic aneurysm formation with subsequent rupture. The authors present the case of a 61-year-old man who was found unresponsive at home 3 days after discharge from the hospital for treatment of gastroenteritis with bacteremia. Postmortem examination revealed a ruptured mycotic aneurysm with a large retroperitoneal hematoma. Numerous gram-negative rods were embedded in the wall of the aorta and surrounding inflammatory infiltrate, compatible with the patient's previously isolated. Whereas abdominal aortic aneurysm rupture is most commonly associated with atherosclerosis, the isolation of from blood cultures, coupled with radiographic evidence of gas surrounding the aorta, should raise the suspicion of infectious aortitis. Whereas fatal rupture of an aortic aneurysm secondary to atherosclerosis alone or in conjunction with aortitis will not have an impact on the manner of death, infections are reportable and thus have public health implications.     

Death resulting from ruptured cerebral artery aneurysm: 219 cases

To characterize the demographics of ruptured cerebral artery aneurysm as a cause of death and to examine the effect of improved diagnostic and therapeutic techniques on the incidence of sudden death associated with the condition, the authors reviewed 219 autopsies performed at the Dallas County Medical Examiner's Office between 1977 and 1997 in which the cause of death was ruptured cerebral artery aneurysm. Ruptured cerebral artery aneurysms accounted for 1.5% of 15,033 natural deaths and 0.4% of all deaths (45,492) followed by autopsy during this period. The majority (56%) of cases occurred in females, with Caucasian females composing the largest group (38%). Seventy-seven percent of cases occurred in individuals between the ages of 31 and 70 years, with the highest concentration in the 41- to 50-year decade (29%). The most common location for ruptured aneurysms was the middle cerebral artery distribution (39%). Multiple aneurysms occurred in 22 (9.1%) cases. Other factors, such as medical history, coexisting disease, symptoms, activity at onset of symptoms, survival time, and toxicology results are also presented. Compared with literature reports before 1980, when ruptured cerebral artery aneurysms were reported as the cause of death in approximately 4% to 5% of sudden natural deaths, the results of this study suggest that despite improved diagnostic and therapeutic techniques during the past two decades, morbidity and mortality from ruptured aneurysms remain a significant health problem.     

Sudden death due to asphyxia by esophageal polyp: two case reports and review of asphyxial deaths

Asphyxia, not an uncommon cause of sudden death, may result from numerous etiologies. Foreign-body aspiration and strangulation are 2 extrinsic causes. Airway obstruction may also be caused by laryngeal edema, asthma, infection, or anaphylaxis. Chronic causes of asphyxia include musculoskeletal diseases (eg, muscular dystrophy, amyotrophic lateral sclerosis), neurologic disorders (eg, myasthenia gravis, multiple sclerosis), respiratory disease (eg, emphysema, chronic bronchitis), or tumors. The manner of death in cases of asphyxiation may be natural, accidental, homicide, or suicide. For the death investigator, determining the cause and manner of death can often be quite challenging.We report here 2 cases of an esophageal fibrovascular polyp causing sudden asphyxial death, review of the literature, and discussion of other differential diagnoses in the case of asphyxial death.     

Death due to microvascular occlusion in sickle-cell trait following physical exertion

The heterozygous condition characterized by the presence of hemoglobin AS (sickle-cell trait) occurs in approximately 8% of the American black population. Unlike the homozygous state (sickle-cell disease), sickle-cell trait is not widely recognized as a cause of life-threatening illness or death despite over 30 case reports describing fatal or serious complications of exercise in young black males with this condition. These reports identify heat stress, dehydration, viral illness, and poor physical conditioning as factors which may contribute to exertional rhabdomyolysis and sudden death, suggesting multifactorial etiology. However, since sickling is known to occur postmortem, it remains controversial as to whether the pathogenesis of these exercise related deaths involves microvascular obstruction by sickled erythrocytes. We describe three young black individuals with no significant past medical history who died following physical exertion. In all three cases, postmortem hemoglobin electrophoresis demonstrated hemoglobin AS. In none of the cases was the body temperature found to be elevated. These cases serve to remind the forensic community that, in the proper setting, sickle-cell trait must be viewed as a potentially fatal disorder.     

Ethics and the psychiatric determination of competency to be executed

For the last several centuries, most jurisdictions using capital punishment have had formal or informal rules that prohibit the execution of the mentally ill. In this article, the procedures for such exclusions in Florida are examined. The article begins by attempting to answer the question of why legislators and judges, at least nominally, have prohibited the execution of the mentally ill. Next, Florida's criteria for defining and procedures for excluding mentally ill prisoners are examined and found to be vague. We then turn attention to the ethical problems created by the statute and its implementation that face the participating psychiatrists and the profession. These problems are compounded because the physician's findings are not acted upon by politically neutral authorities and the inmate has no opportunity to challenge the findings with his own panel of experts. Finally, since any exclusion of the mentally ill from execution is temporary and the patient will be executed if he recovers, the dilemmas facing the treatment staff if the death sentence is not commuted to life imprisonment before treatment are discussed.     

The perceptions of the European Union among tertiary education students in Singapore

Students from the three main universities in Singapore were surveyed in the third quarter 2008 to assess their perceptions and knowledge of Europe/the European Union. This survey complements and expands upon that done in 2006 by the National Centre for Research on Europe (NCRE) which was supported by Asia–Europe Foundation. The student survey showed that this important age and education cohort had a middling to low assessment of the EU in its importance for Singapore, an assessment which was much lower than the objective view of the relation (in terms of trade and the EU as a dialogue partner) would warrant. The sources of this perception were examined, and it was found that there was no immediate correlation between level of assessment of Europe/the EU and: gender, nationality, year of study, subject of study or frequency of accessing the local media for international news. Therefore, such perceptions can be assumed to derive from sporadic, ad hoc intangible contacts and fleeting impressions rather than through formal education, the media and specific, focussed and localised EU-related outreach programmes.

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