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.     

Acute myoglobinuria as a fatal complication of heroin addiction

A fatal case of myoglobinuria complicating heroin addiction is described. Clinically the patient had no overt symptoms of rhabdomyolysis. Pathologists should be alerted to this rare complication in heroin addicts who die of no apparent cause. The antimyoglobin immunoperoxidase technique is useful in confirming the diagnosis.     

Implementing Equal Justice for Parents in Washington: A Dual Approach

In many states, legal representation for parents of dependent children is inadequate and can be a source of delays in securing permanency for children and unnecessarily protracted court proceedings. Often, such parents also face barriers to accessing services and independent evaluators. These issues are being addressed in the state of Washington through two approaches. The first is a successful enhanced legal representation program that has substantially improved case outcomes. The second is a statewide committee using innovative means to examine systemic responses to the challenges of the Adoption and Safe Families Act.     

Correlates of Mortality in a U.S. Cohort of Youth, 1980–98: Implications for Social Justice

This paper reports results of a study based on a nationally representative sample of U.S. youth (N = 11,549) that asked two questions: (1) How does family structure affect the likelihood of adolescent death beyond that of race/ethnicity, sex, socioeconomic status, personal behavior, and other structural factors and (2) under what conditions might appeals for social justice be warranted for relative mortality statuses and for absolute gains in mortality? The study found that marital instability increases the likelihood of dying when controlling for a variety of other factors including class, race/ethnicity, sex, and unemployment rate in area of residence. The author argues that this finding lends support to social justice arguments to redistribute resources in such a way as to ensure the likelihood of absolute gains in mortality. The study also found, however, that race/ethnicity/sex also accounted for the likelihood of dying independently of family structure when controlling for socioeconomic and other factors. The author argues that this finding lends support to social justice arguments to redistribute resources on the basis of relative mortality statuses.     

The individuality of fibres used to provide forensic evidence--not all blue polyesters are the same.

Fibres used in forensic casework suffer from a disadvantage common to other forms of trace evidence--it is not possible to state with absolute certainty that they originate from a specific source. Target fibre studies, population studies and research on 'blocks of colour' have effectively demonstrated the polymorphism of textile fibres (particularly man-made ones) and have shown that when a fibre is believed to have a specific putative source, the chance that it has originated from a different source purely by coincidence is extremely remote. A study by Houck MM (Houck MM, Inter-comparison of unrelated fibre evidence. Forensic Science International 2003; 135: 146-149) has shown that no coincidental matching fibres were recovered from items of clothing examined in 20 unrelated crimes. The study involved over two million comparisons. This work goes a step further, and using the example of blue polyester fibres shows that even within a very narrow segment of the whole general fibre population, many examples of a specific colour/type of man-made fibre taken from random sources can be compared and the chance of any two being the same is very low. These studies should help to show the specificity and value of transferred fibres in providing forensic evidence.