Freedom is the recognition of necessity 1 Since 1950 the world population has multiplied more rapidly than ever before. In 1950 there were 2.5 billion people on earth and in 2005 there were 6.5 billion. This number could rise by 2015 to more than 9 billion. 2 In 1979 the human population was estimated to be approximately doubling in total every 36 years. 3 This led some authors to conclude that "[t]he human population is already above the optimum size". 4 This rapid growth results in severe ecological, psychological, political, economic and sociological ramifications 5 and it may well be concluded that warnings of authors as far back as 1798 have (collectively) been neglected or ignored. Malthus for instance warned that the population must always be kept down to the means of subsistence. 6 John Stuart Mill 7 allowed population control as one of the few exceptions to government non-interference. More recently, Hardin 8 approaches the issue from the notion of the commons-a shared, finite resource (for instance water, forest land and JA (Robbie) Robinson. B Iur LLB (PU for CHE) LLM (NWU) LLD (PU for CHE).
Section 18(b) of the Matrimonial Property Act 88 of 1984 allows for non-patrimonial damages to be claimed by a spouse married in community of property against his/her spouse. In Van der Merwe v Road Accident Fund 2006 4 SA 230 (CC) the court extended this exception to the notional purity of community of property to include patrimonial damages on the basis that section 18(b) discriminated unfairly against spouses married in community of property vis-à-vis spouses married out of community. The implications of this decision on commercial intercourse are discussed in this contribution against the background of prior decisions relating to the insolvency of spouses married in community of property.
But if a mind that is geared towards pragmatic expediency seeks to destroy everything that is not immediately plausible or does not promise any direct benefit, then such a mind inadvertently removes the basis from a modern person's claim to freedom and self-fulfilment. In the long term, this leads to the formation of structures which are the very opposite of what we once regarded as the basis and condition of freedom. 1 1 Trost 2002 Kirchliche Umschau 29. (Hereafter referred to as Braun I.) For the sake of convenience it will be accepted that the claim of homosexual couples is for marriage. That is however not necessarily the case. In a paper presented by Coester 2002 Eur J Fam L on the topic of same-sex relationships at the University College of London, 26 February 2002, reference is made to Tatchell, an English advocate for homosexual rights, who argues as follows: "We certainly do not believe that queers should copy a fundamentally flawed heterosexual institution … The most serious campaigners for marriage are now conservative gays and religious fundamentalists … Having enjoyed the greater life style choices and sexual freedom that go with being gay, we'd be crazy to don the straightjacket of wedlock." Glendon 1976 Virginia Law Review 684 quoted in Coester states that "[t]hose exercising the 'right to marry' may find that life on the other side of the door they have tried so hard to open is not much different from life on the outside. In passing through the door, they may encounter an unlooked-for intimacy with the State." 2
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