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
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- Date Issued: 2022-12
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