The Supreme Court of Appeal (in a judgment dated 23.11.07) in the case of Bid Industrial Holdings v Strang (2007) SCA 144 (RSA) (now cited as 2008(3) SA 355 (SCA)) held that the common-law requirement of arrest to found or confirm jurisdiction where an incola plaintiff wishes to sue a foreign peregrinus, which procedure is authorised in section 19(1) (c) of the Supreme Court Act 59/1959, 1 is unconstitutional. In essence it was so held because such an arrest restricts a person's liberty and freedom (as entrenched in section 12 (1) of the Constitution) without a just cause. This article evaluates the judgment and highlights the importance of the full historical context and rationale for the existence of a common-law rule as yardstick against which to measure its constitutional justifiability. In this instance the rationale for the existence of the common-law rule of jurisdictional arrest was also, in essence, premised on the unequal treatment of foreigners vis à vis citizens, and predictably, this could not have passed the standard set by section 39(2) of the Constitution. The article investigates the method employed by the SCA in its interpretation of the alleged unconstitutional stipulations of the Supreme Court Act so as to bring it in line with the spirit, purport and objects of the South African Bill of Rights. Special attention is paid to the criticism of the judgment that it failed to comply with the peremptory stipulations of section 172 of the Constitution. The article concludes that such criticism is unwarranted. Pistorius D 1993. Pollak on jurisdiction. 2 nd edition. Cape Town: Juta. theoPhiloPoulos c et al. 2006. Fundamental principles of civil pro cedure. Durban: LexisNexis Butterworths.
Stakeholders in South African legal education have been clear on the need for a legal ethics module as part of the LLB degree programme. In this contribution, the authors draw on relevant literature, particularly regarding the American experience, as well as their own observations as legal practitioners and lecturers to advance the conceptualization, design and presentation of such a potential fully-fledged legal ethics module (or modules). Some reflections on the conceptual points of departure for a legal ethics module are followed by a discussion of the more pragmatic aspects associated with legal ethics teaching, namely the goals and objectives pursued (the “what and why”) and the methods used (the “where, when and how”). The article argues that although a stand-alone module is urgently needed, legal ethics need not be taught in isolation, but should ideally be incorporated throughout the curriculum using a mixed-method approach. Such an approach will inculcate in students the realization that ethical issues are not restricted to a lecture or a set of notes: Ethics – whether based on students’ personal moral values and philosophy, or the professional and disciplinary rules and codes of conduct of the legal profession – are and will remain an integral part of their everyday and future working lives.
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