Rationalisation of magisterial districts to transform the judiciary and widen access to justice under the RSA constitution of 1996
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-01
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
- Full Text:
- Date Issued: 2024-01
Amendments to the labour relations act to curb violent and intractable strikes
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
Protection of the environment from pollution emanating from offshore oil installations
- Authors: Kuture, Dudzai Chandisaita
- Date: 2022-12
- Subjects: Marine pollution -- South Africa , Marine Law – South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59710 , vital:62383
- Description: The desperate need for South Africa to develop its oil industry is driven by the goal of improving the social and economic situation in the State. This goal has sparked an interest in expanding the exploration and exploitation of oil within the marine environment to the extent of venturing into uncharted deeper waters.1 This interest has been met with a constant reminder of the Deepwater Horizon explosion as one of the many events that stirred up concerns within the global community on the possibility of an oil spill causing pollution within the marine environment. Also, that explosion and its effects have demonstrated the need for the global community to closely monitor and effectively regulate environmental matters, including the exploration and exploitation of oil and the prevention of oil pollution.2 Therefore, the recent discovery of additional oil deposits in South Africa has confirmed the need to revisit the current legal system regulating the impact on the marine environment including the exploration and exploitation of oil.3 An oil spill causing pollution amongst other pollutants is a significant contributor to loss and damage to the marine environment and its habitat. In developing States like South Africa, an oil spill causing pollution can present challenges due to the scarcity of resources, technology, and knowledge to prepare, prevent and combat the spreading of the pollutant. As it stands, in the event of an oil spill, States must rely on international cooperation and expertise to ensure that the impact does not cause irreversible harm and degradation to the marine environment. South Africa within the global community gives effect to international law by adopting domestic laws that regulate the exploration and exploitation of oil to protect the environment from oil spills causing oil pollution within the marine environment. In addition, the liability caused by oil spills plays a vital role in the need to rehabilitate the marine environment and compensate the aggrieved parties. , Thesis (LLM) -- Faculty of Law, Department of Public law , 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Kuture, Dudzai Chandisaita
- Date: 2022-12
- Subjects: Marine pollution -- South Africa , Marine Law – South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59710 , vital:62383
- Description: The desperate need for South Africa to develop its oil industry is driven by the goal of improving the social and economic situation in the State. This goal has sparked an interest in expanding the exploration and exploitation of oil within the marine environment to the extent of venturing into uncharted deeper waters.1 This interest has been met with a constant reminder of the Deepwater Horizon explosion as one of the many events that stirred up concerns within the global community on the possibility of an oil spill causing pollution within the marine environment. Also, that explosion and its effects have demonstrated the need for the global community to closely monitor and effectively regulate environmental matters, including the exploration and exploitation of oil and the prevention of oil pollution.2 Therefore, the recent discovery of additional oil deposits in South Africa has confirmed the need to revisit the current legal system regulating the impact on the marine environment including the exploration and exploitation of oil.3 An oil spill causing pollution amongst other pollutants is a significant contributor to loss and damage to the marine environment and its habitat. In developing States like South Africa, an oil spill causing pollution can present challenges due to the scarcity of resources, technology, and knowledge to prepare, prevent and combat the spreading of the pollutant. As it stands, in the event of an oil spill, States must rely on international cooperation and expertise to ensure that the impact does not cause irreversible harm and degradation to the marine environment. South Africa within the global community gives effect to international law by adopting domestic laws that regulate the exploration and exploitation of oil to protect the environment from oil spills causing oil pollution within the marine environment. In addition, the liability caused by oil spills plays a vital role in the need to rehabilitate the marine environment and compensate the aggrieved parties. , Thesis (LLM) -- Faculty of Law, Department of Public law , 2022
- Full Text:
- Date Issued: 2022-12
Selected Aspects of the Crime of Necrophilia
- Authors: Somandi, Siphuxolo
- Date: 2022-12
- Subjects: Rape , Necrophilia , Crime of Necrophilia
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60421 , vital:64874
- Description: The treatise begins by defining rape pre and post-Constitution. Through the analysis of the latter, it refers to the Masiya case, particularly in light of extending the definition of rape to align it with the spirit, purport and objects of the Bill of Rights. It further focuses on the rights that Masiya identified as being infringed upon whenever the act of rape occurs. The treatise thereafter discusses the crime of committing sexual acts with a corpse, formerly known as necrophilia. It argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with a "corpse". For an illustration of the latter, the treatise categorises the circumstances of sexual acts committed with corpses into Categories A and B and uses cases in each Category as an aid. Some of the sexual acts by perpetrators begin with the sole purpose of rape but because the rape cannot be achieved due to the resistance of the victim, the perpetrator has no choice but to overcome the resistance of the victim, which in the context of this treatise means killing the victim. The perpetrator thereafter proceeds with what was initially intended, the rape of the victim. However, in the cases considered, the perpetrator is saved by expert evidence to the effect that the victim was dead at the time of penetration and therefore the perpetrator in addition to being convicted for murder is convicted of committing a sexual act with a corpse. The treatise thus argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with the corpse. The treatise highlights the fact that a sexual act with a corpse is a crime of intention. The differing circumstances in which the said crime is committed carries with it a difference in intention and thus should be criminalised differently. This is particularly so when one considers that expert evidence is used to confirm whether or not the victim was dead or alive at the time of the sexual penetration. This confirms that the perpetrator could not have known that the victim was dead at the time of penetration and thus for all intents and purposes, the perpetrator believed he is raping the victim, who he considers to be alive. he treatise thus argues that the perpetrator cannot be saved by expert evidence that surmises that the perpetrator intended to have sexual intercourse with a corpse, the intention that the perpetrator did not carry at the time of committing the crime. The treatise further argues that because rape has been identified as a crime that infringes on human rights, these rights are not extinguished by death thus the same rights are infringed by sexual acts with a corpse. With the aid of some international authorities, the treatise argues that a Category B sexual act committed with a corpse could be criminalised under attempted rape. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
- Authors: Somandi, Siphuxolo
- Date: 2022-12
- Subjects: Rape , Necrophilia , Crime of Necrophilia
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60421 , vital:64874
- Description: The treatise begins by defining rape pre and post-Constitution. Through the analysis of the latter, it refers to the Masiya case, particularly in light of extending the definition of rape to align it with the spirit, purport and objects of the Bill of Rights. It further focuses on the rights that Masiya identified as being infringed upon whenever the act of rape occurs. The treatise thereafter discusses the crime of committing sexual acts with a corpse, formerly known as necrophilia. It argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with a "corpse". For an illustration of the latter, the treatise categorises the circumstances of sexual acts committed with corpses into Categories A and B and uses cases in each Category as an aid. Some of the sexual acts by perpetrators begin with the sole purpose of rape but because the rape cannot be achieved due to the resistance of the victim, the perpetrator has no choice but to overcome the resistance of the victim, which in the context of this treatise means killing the victim. The perpetrator thereafter proceeds with what was initially intended, the rape of the victim. However, in the cases considered, the perpetrator is saved by expert evidence to the effect that the victim was dead at the time of penetration and therefore the perpetrator in addition to being convicted for murder is convicted of committing a sexual act with a corpse. The treatise thus argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with the corpse. The treatise highlights the fact that a sexual act with a corpse is a crime of intention. The differing circumstances in which the said crime is committed carries with it a difference in intention and thus should be criminalised differently. This is particularly so when one considers that expert evidence is used to confirm whether or not the victim was dead or alive at the time of the sexual penetration. This confirms that the perpetrator could not have known that the victim was dead at the time of penetration and thus for all intents and purposes, the perpetrator believed he is raping the victim, who he considers to be alive. he treatise thus argues that the perpetrator cannot be saved by expert evidence that surmises that the perpetrator intended to have sexual intercourse with a corpse, the intention that the perpetrator did not carry at the time of committing the crime. The treatise further argues that because rape has been identified as a crime that infringes on human rights, these rights are not extinguished by death thus the same rights are infringed by sexual acts with a corpse. With the aid of some international authorities, the treatise argues that a Category B sexual act committed with a corpse could be criminalised under attempted rape. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
Termination of employment in the public service sector: the constitutionality of the deeming provisions
- Authors: Mbewana, Inga
- Date: 2022-12
- Subjects: unfair labor practices--South Africa , labor law and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60080 , vital:62940
- Description: In terms of the South African Public Service Act,1 an employee who absents him- /herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed to have been discharged by operation of law. A similar provision can also be found in section 14 of the Employment of Educators Act,2 which expressly refers to fourteen (14) consecutive day’s unauthorised absence as opposed to thirty (30) days. Employees whose services have been terminated by operation of law are deprived an opportunity to defend themselves prior to the dismissal as prescribed by the Labour Relations Act3 (LRA). South African courts have grappled with several cases relating to dismissal by operation of law in the public service. The nature of these provisions is such that employees in the public sector are discharged from their duties without any hearing to offer them the opportunity to state their side and/or give a reasonable explanation for their absence. These provisions will thus be referred to herein as “the deeming provisions”. The deeming provisions provide that the discharge / dismissal is “on account of misconduct” however, it does not provide for a pre-dismissal procedure that is to be followed when dismissal is on account of misconduct, as prescribed by the LRA. It has been settled in our law that dismissal by operation of law is not dismissal for the purposes of the LRA. The employees dismissed by operation of law are regarded as if they are not entitled to a hearing. The right to fair labour practices protects everyone including public sector employees, 4 and such right is given effect to by way of enactment of the LRA. The LRA serves to protect public sector employees except where the exclusion is specified. This treatise seeks to challenge the necessity and constitutionality of the deeming provisions on the basis of its contravention of the constitutional right to fair labour practices. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Mbewana, Inga
- Date: 2022-12
- Subjects: unfair labor practices--South Africa , labor law and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60080 , vital:62940
- Description: In terms of the South African Public Service Act,1 an employee who absents him- /herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed to have been discharged by operation of law. A similar provision can also be found in section 14 of the Employment of Educators Act,2 which expressly refers to fourteen (14) consecutive day’s unauthorised absence as opposed to thirty (30) days. Employees whose services have been terminated by operation of law are deprived an opportunity to defend themselves prior to the dismissal as prescribed by the Labour Relations Act3 (LRA). South African courts have grappled with several cases relating to dismissal by operation of law in the public service. The nature of these provisions is such that employees in the public sector are discharged from their duties without any hearing to offer them the opportunity to state their side and/or give a reasonable explanation for their absence. These provisions will thus be referred to herein as “the deeming provisions”. The deeming provisions provide that the discharge / dismissal is “on account of misconduct” however, it does not provide for a pre-dismissal procedure that is to be followed when dismissal is on account of misconduct, as prescribed by the LRA. It has been settled in our law that dismissal by operation of law is not dismissal for the purposes of the LRA. The employees dismissed by operation of law are regarded as if they are not entitled to a hearing. The right to fair labour practices protects everyone including public sector employees, 4 and such right is given effect to by way of enactment of the LRA. The LRA serves to protect public sector employees except where the exclusion is specified. This treatise seeks to challenge the necessity and constitutionality of the deeming provisions on the basis of its contravention of the constitutional right to fair labour practices. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
The extension of collective agreements to non- parties for dismissal for operational requirements
- Authors: Lupondwana, Masiza Howard
- Date: 2022-12
- Subjects: Labor laws and legislation--South Africa , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59724 , vital:62387
- Description: Section 23 (1) of the Constitution of the Republic of South Africa1 states that “Everyone has the right to fair labour practice. (2) Every worker has the right to – (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike’’. The Labour Relations Act 2 (the LRA) was enacted to give effect to section 23 of the Constitution, to regulate the organizational rights of trade union, to promote and facilitate collective bargaining at the workplace and at sectoral level. Its purpose is to advance the economic development, social justice, labour peace and democratization of the workplace by fulfilling the primary objectives of this Act. Firstly, this study seeks to critically examine the extension of collective agreements and effect of section 23(1) (d) in both small- and large-scale retrenchments (s189 & 189 A). A right to fair dismissal is a guaranteed employment right as outlined in section 185 of the LRA. Danielle Venn writes that “legislation is not the only source of employment, labour law clearly set a minimum standard while collective agreements or individual contracts can include provisions more generous to employees than those in legislation.3 This indicates that collective agreements are mechanisms aimed at creating conducive working conditions of employment between the employer and employee in the workplace. By ensuring that resolutions aimed at promoting general welfare of employees are implemented, regulating and enhancement of employee benefits, and other matters of mutual interest are expressed in the agreement. Individual employment law has express terms which clearly state that an employment contract may incorporate the employer’s disciplinary code of conduct. This mostly include procedure to be followed during termination of service or dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Lupondwana, Masiza Howard
- Date: 2022-12
- Subjects: Labor laws and legislation--South Africa , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59724 , vital:62387
- Description: Section 23 (1) of the Constitution of the Republic of South Africa1 states that “Everyone has the right to fair labour practice. (2) Every worker has the right to – (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike’’. The Labour Relations Act 2 (the LRA) was enacted to give effect to section 23 of the Constitution, to regulate the organizational rights of trade union, to promote and facilitate collective bargaining at the workplace and at sectoral level. Its purpose is to advance the economic development, social justice, labour peace and democratization of the workplace by fulfilling the primary objectives of this Act. Firstly, this study seeks to critically examine the extension of collective agreements and effect of section 23(1) (d) in both small- and large-scale retrenchments (s189 & 189 A). A right to fair dismissal is a guaranteed employment right as outlined in section 185 of the LRA. Danielle Venn writes that “legislation is not the only source of employment, labour law clearly set a minimum standard while collective agreements or individual contracts can include provisions more generous to employees than those in legislation.3 This indicates that collective agreements are mechanisms aimed at creating conducive working conditions of employment between the employer and employee in the workplace. By ensuring that resolutions aimed at promoting general welfare of employees are implemented, regulating and enhancement of employee benefits, and other matters of mutual interest are expressed in the agreement. Individual employment law has express terms which clearly state that an employment contract may incorporate the employer’s disciplinary code of conduct. This mostly include procedure to be followed during termination of service or dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
THE LEGALITY OF ANTICIPATORY SELF-DEFENCE AGAINST A MARITIME CYBER-ATTACK
- Authors: DARE, FOLUKE MARY
- Date: 2022-12
- Subjects: Maritime Cybersecurity , Maritime Cyber-Attack , Use of Force -- Maritime Cyber Threats
- Language: English
- Type: Doctorate's theses , text
- Identifier: http://hdl.handle.net/10948/59281 , vital:61895
- Description: This research aims to determine how the principle of anticipatory self-defence, in line with article 51 of the UN Charter, can be applied to the context of maritime cybersecurity. Despite the debates by some scholars to clarify the international law position on anticipatory self-defence in the maritime context, there is no universally accepted legal provision for States to rely on in carrying out anticipatory self-defence against imminent maritime cyber-attacks. This raises the questions concerning the lawful steps States can take in self-defence against maritime cyber-attacks. This research shows the challenges facing States in their bid to comply with the provision of article 51 of the UN Charter to anticipatorily defend against an MCA. The recommendations made are intended to guide States in making policies and mapping our strategies to lawfully tackle the emerging threat of cyber-attacks against maritime security. , Thesis (LLD) -- Faculty of Law, School of Environmental Sciences, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: DARE, FOLUKE MARY
- Date: 2022-12
- Subjects: Maritime Cybersecurity , Maritime Cyber-Attack , Use of Force -- Maritime Cyber Threats
- Language: English
- Type: Doctorate's theses , text
- Identifier: http://hdl.handle.net/10948/59281 , vital:61895
- Description: This research aims to determine how the principle of anticipatory self-defence, in line with article 51 of the UN Charter, can be applied to the context of maritime cybersecurity. Despite the debates by some scholars to clarify the international law position on anticipatory self-defence in the maritime context, there is no universally accepted legal provision for States to rely on in carrying out anticipatory self-defence against imminent maritime cyber-attacks. This raises the questions concerning the lawful steps States can take in self-defence against maritime cyber-attacks. This research shows the challenges facing States in their bid to comply with the provision of article 51 of the UN Charter to anticipatorily defend against an MCA. The recommendations made are intended to guide States in making policies and mapping our strategies to lawfully tackle the emerging threat of cyber-attacks against maritime security. , Thesis (LLD) -- Faculty of Law, School of Environmental Sciences, 2022
- Full Text:
- Date Issued: 2022-12
The Preparation of Expert Witnesses to testify in Medical Negligence Cases
- Authors: Witi, Bulelani
- Date: 2022-12
- Subjects: Medical personnel--Malpractice--Cases , Expect Witness Preparation
- Language: English
- Type: Master , text
- Identifier: http://hdl.handle.net/10948/60432 , vital:64875
- Description: This research seeks to consider whether the preparation of expert witnesses to testify can be said to be fair and not infringe on Constitutional rights. , Thesis (LLM) -- Faculty of Law, Department Procedural Law
- Full Text:
- Date Issued: 2022-12
- Authors: Witi, Bulelani
- Date: 2022-12
- Subjects: Medical personnel--Malpractice--Cases , Expect Witness Preparation
- Language: English
- Type: Master , text
- Identifier: http://hdl.handle.net/10948/60432 , vital:64875
- Description: This research seeks to consider whether the preparation of expert witnesses to testify can be said to be fair and not infringe on Constitutional rights. , Thesis (LLM) -- Faculty of Law, Department Procedural Law
- Full Text:
- Date Issued: 2022-12
The principle of fairness in South African criminal trials
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
The protection and promotion of the rights of journalists in Tanzania.
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
A Critical Assessment of the Legal and Policy Frameworks for Combating Child Trafficking in the Southern African Development Community
- Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
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
- Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: 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, 2022
- Full Text:
- Date Issued: 2022-05
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: 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, 2022
- Full Text:
- Date Issued: 2022-05
An employer's ability to substitute a disciplinary hearing sanction
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The application of the prescription act in labour disputes
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The criminal liability of health care practitioners for culpable homicide
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
The regulation of renewable energy in South Africa
- Van Huyssteen, Cornelis Roelof, Adelman, Sam
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
Accountability of the police to provincial governments in South Africa: a comparative analysis of law and practice in the eastern and Western Cape Provinces
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
Standards for the admission of forensic scientific evidence in criminal trials through an expert: Lessons and guidelines for South Africa
- Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
Marine Plastic Pollution
- Vilakazi, Bathobile Thandazile Unittah
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
The work In fishing Convention as an Instrument to combat forced labour on fishing vessels: A South African perspective
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12