Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
Intercountry adoption and alternative care in South Africa: a model for determining placement in the best interests of the child
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
Labour dispute resolution in Kenya: compliance with international standards and a comparison with South Africa
- Authors: Gathongo, Johana Kambo
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa , Dispute resolution (Law) – Kenya , Mediation and conciliation, Industrial -- Kenya , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Kenya
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/23980 , vital:30657
- Description: The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2018
- Authors: Gathongo, Johana Kambo
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa , Dispute resolution (Law) – Kenya , Mediation and conciliation, Industrial -- Kenya , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Kenya
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/23980 , vital:30657
- Description: The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2018
The customary law practice of ukuthwala – an antithesis in the South African constitutional order
- Jokani, Mkhuseli Christopher
- Authors: Jokani, Mkhuseli Christopher
- Date: 2018
- Subjects: Customary law -- South Africa , Culture -- Legal status, laws, etc -- South Africa Forced marriage -- Legal status, laws, etc -- South Africa Teenage marriage -- South Africa -- Eastern Cape Xhosa (African people) -- Law and legislation -- Social life and customs
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/22474 , vital:29973
- Description: The concept of ukuthwala is an age-old customary marriage practice prevalent amongst the Nguni speaking tribes of South Africa. It is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. The SABC and E-tv evening television news coverage of 15th March 2009 reported the prevalence of forced and child marriages of young girls with elderly men in the East Pondoland of the Eastern Cape. The question arose as to whether the custom of ukuthwala could be justified as a legitimate cultural practice in the context of a modern constitutional democracy because some view it as an outdated customary practice that targets girl children, while others view it as a legitimate cultural practice. Since ukuthwala cannot be treated as a unitary phenomenon, variants of the practice must be distinguished. The thesis reveals that there are three variants of ukuthwala, which are ukuthwala ngemvumelwano, ukuthwala kobolawu and ukuthwala okungenamvumelwano. The thesis concludes by drawing a distinction between ukuthwala, forced marriage and child marriage. It proposes that ukuthwala in its traditional form is not synonymous with forced marriage and child marriage. The thesis poses the following main legal questions, namely: does the South African criminal jurisprudence criminalise ukuthwala, and if so, on what charges are perpetrators tried; and how is the inherent conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution, resolved? The thesis responds to these questions as follows. Firstly, it is suggested that ukuthwala in itself is not a formally defined crime, but a customary law practice resorted to by the prospective suitor to force the parents of the young woman into marriage negotiations. However, in recent times the practice has been abused and distorted which borders on the commission of a criminal offence and the violation of the young woman’s human rights. The criminal offences that are committed because of the distorted form of ukuthwala are both in terms of the common and statutory laws of South Africa. The thesis suggests that those found guilty of committing a crime under the pretext of customary law practice of ukuthwala should be punished. South Africa has a number of statutory as well as common law provisions, which can be used to prosecute those found to have committed offences. South Africa does not need to outlaw and criminalise ukuthwala in its entirety but does need to distinguish between the distorted and the traditional forms of ukuthwala. The thesis responds to the second main question as follows. Firstly, the violation of the young woman’s human rights brings to the fore a conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution. The thesis makes a distinction between the three variants of ukuthwala customary practices and concludes that ukuthwala ngemvumelwano is the most acceptable form because it takes place when there is mutual consent between parties. It further proposes that the positive elements within the customary law practice of ukuthwala must be developed and promoted provided that they are consistent with the provisions of the Constitution. However, the negative elements that conflict with provisions of the Constitution should be done away with. The thesis suggests that the latter approach is important to addressing the conflict between ukuthwala customary practice and the Bill of Rights. The thesis concludes by suggesting that the distorted form of subjecting young women and girl children into forced marriages under the pretext of the customary law practice of ukuthwala are unconstitutional and cannot be justified in terms of sections 30 and 31 of the Constitution. Therefore, ukuthwala customary law practice is not free from criticism if one considers the two variants of ukuthwala where there has been no consent from one of the parties concerned. A comparative analysis is undertaken with selected Southern African Development Community countries to establish similarities in practices related to ukuthwala and how the consequent contradictions between customary law and common law have been dealt with. The thesis concludes that ukuthwala is a unique South African customary practice that is different from other customary practices in some selected jurisdictions. Therefore, the comparative analysis has helped in identifying how poverty perpetuates the different but related, customary law practices across the selected jurisdictions. Therefore, in order for Mother Africa to adequately respond to the harmful traditional practices there is a need to address the socio-economic issues particularly in the rural parts of Africa. The harmful traditional practices seem to be more common in the rural parts of the selected jurisdictions rather than in urban and semi-urban areas. The lesson learnt is that social development should have a particular bias towards the rural areas of Africa. The findings, amongst others, are that ukuthwala in its traditional form is a legitimate customary law practice which was often resorted to when obstacles arose in order to force the parents of the young woman to negotiate marriage. Ukuthwala is not synonymous with forced and early marriages. The thesis recommends that South Africa does not need to outlaw ukuthwala despite the fact that it has now been abused and distorted. It is argued that there are sufficient statutory and common laws to respond to the scourge of distorted versions of ukuthwala in South Africa. The thesis recommends that South Africa with its plural legal system should highlight the supremacy of the Constitution aligned with international human rights standards to avoid conflict in legal interpretation and implementation. It is hoped that this will assist in the implementation of the positive aspects of African customary law within the legal system and will remove the negative elements that infringe on the rights of women and children. It is recommended that it would be useful to pursue non-legislative measures to deal comprehensively with the causes of ukuthwala and its consequences by investing in education, training and awareness raising campaigns among sectors of society, most importantly rural people. Education, when employed, should not be an event but a process that will start at school level and extend to post-university. The emphasis should be on the inclusion of gender studies from early grades to undo the mentality of male superiority and entrench an equality attitude between boys and girls from a very early age. The reason for this suggestion is that attitudes manifested in our society always portray girls and women as being weak and therefore not equal to boys and men. It is important to ensure that role-players in the fight against gender-based violence are adequately trained to equip them to handle these cases properly. These role-players include South African Police Service members, National Prosecuting Authority, Judiciary and Non-Governmental Organisations to mitigate secondary victimisation of victims of these distorted cultural practices.
- Full Text:
- Date Issued: 2018
- Authors: Jokani, Mkhuseli Christopher
- Date: 2018
- Subjects: Customary law -- South Africa , Culture -- Legal status, laws, etc -- South Africa Forced marriage -- Legal status, laws, etc -- South Africa Teenage marriage -- South Africa -- Eastern Cape Xhosa (African people) -- Law and legislation -- Social life and customs
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/22474 , vital:29973
- Description: The concept of ukuthwala is an age-old customary marriage practice prevalent amongst the Nguni speaking tribes of South Africa. It is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. The SABC and E-tv evening television news coverage of 15th March 2009 reported the prevalence of forced and child marriages of young girls with elderly men in the East Pondoland of the Eastern Cape. The question arose as to whether the custom of ukuthwala could be justified as a legitimate cultural practice in the context of a modern constitutional democracy because some view it as an outdated customary practice that targets girl children, while others view it as a legitimate cultural practice. Since ukuthwala cannot be treated as a unitary phenomenon, variants of the practice must be distinguished. The thesis reveals that there are three variants of ukuthwala, which are ukuthwala ngemvumelwano, ukuthwala kobolawu and ukuthwala okungenamvumelwano. The thesis concludes by drawing a distinction between ukuthwala, forced marriage and child marriage. It proposes that ukuthwala in its traditional form is not synonymous with forced marriage and child marriage. The thesis poses the following main legal questions, namely: does the South African criminal jurisprudence criminalise ukuthwala, and if so, on what charges are perpetrators tried; and how is the inherent conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution, resolved? The thesis responds to these questions as follows. Firstly, it is suggested that ukuthwala in itself is not a formally defined crime, but a customary law practice resorted to by the prospective suitor to force the parents of the young woman into marriage negotiations. However, in recent times the practice has been abused and distorted which borders on the commission of a criminal offence and the violation of the young woman’s human rights. The criminal offences that are committed because of the distorted form of ukuthwala are both in terms of the common and statutory laws of South Africa. The thesis suggests that those found guilty of committing a crime under the pretext of customary law practice of ukuthwala should be punished. South Africa has a number of statutory as well as common law provisions, which can be used to prosecute those found to have committed offences. South Africa does not need to outlaw and criminalise ukuthwala in its entirety but does need to distinguish between the distorted and the traditional forms of ukuthwala. The thesis responds to the second main question as follows. Firstly, the violation of the young woman’s human rights brings to the fore a conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution. The thesis makes a distinction between the three variants of ukuthwala customary practices and concludes that ukuthwala ngemvumelwano is the most acceptable form because it takes place when there is mutual consent between parties. It further proposes that the positive elements within the customary law practice of ukuthwala must be developed and promoted provided that they are consistent with the provisions of the Constitution. However, the negative elements that conflict with provisions of the Constitution should be done away with. The thesis suggests that the latter approach is important to addressing the conflict between ukuthwala customary practice and the Bill of Rights. The thesis concludes by suggesting that the distorted form of subjecting young women and girl children into forced marriages under the pretext of the customary law practice of ukuthwala are unconstitutional and cannot be justified in terms of sections 30 and 31 of the Constitution. Therefore, ukuthwala customary law practice is not free from criticism if one considers the two variants of ukuthwala where there has been no consent from one of the parties concerned. A comparative analysis is undertaken with selected Southern African Development Community countries to establish similarities in practices related to ukuthwala and how the consequent contradictions between customary law and common law have been dealt with. The thesis concludes that ukuthwala is a unique South African customary practice that is different from other customary practices in some selected jurisdictions. Therefore, the comparative analysis has helped in identifying how poverty perpetuates the different but related, customary law practices across the selected jurisdictions. Therefore, in order for Mother Africa to adequately respond to the harmful traditional practices there is a need to address the socio-economic issues particularly in the rural parts of Africa. The harmful traditional practices seem to be more common in the rural parts of the selected jurisdictions rather than in urban and semi-urban areas. The lesson learnt is that social development should have a particular bias towards the rural areas of Africa. The findings, amongst others, are that ukuthwala in its traditional form is a legitimate customary law practice which was often resorted to when obstacles arose in order to force the parents of the young woman to negotiate marriage. Ukuthwala is not synonymous with forced and early marriages. The thesis recommends that South Africa does not need to outlaw ukuthwala despite the fact that it has now been abused and distorted. It is argued that there are sufficient statutory and common laws to respond to the scourge of distorted versions of ukuthwala in South Africa. The thesis recommends that South Africa with its plural legal system should highlight the supremacy of the Constitution aligned with international human rights standards to avoid conflict in legal interpretation and implementation. It is hoped that this will assist in the implementation of the positive aspects of African customary law within the legal system and will remove the negative elements that infringe on the rights of women and children. It is recommended that it would be useful to pursue non-legislative measures to deal comprehensively with the causes of ukuthwala and its consequences by investing in education, training and awareness raising campaigns among sectors of society, most importantly rural people. Education, when employed, should not be an event but a process that will start at school level and extend to post-university. The emphasis should be on the inclusion of gender studies from early grades to undo the mentality of male superiority and entrench an equality attitude between boys and girls from a very early age. The reason for this suggestion is that attitudes manifested in our society always portray girls and women as being weak and therefore not equal to boys and men. It is important to ensure that role-players in the fight against gender-based violence are adequately trained to equip them to handle these cases properly. These role-players include South African Police Service members, National Prosecuting Authority, Judiciary and Non-Governmental Organisations to mitigate secondary victimisation of victims of these distorted cultural practices.
- Full Text:
- Date Issued: 2018
Towards unmasking the true employee in South Africa’s contemporary work environment: the perennial problem of labour law
- Authors: Maloka, Tumo Charles
- Date: 2018
- Subjects: Labor laws and legislation
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/16874 , vital:40781
- Description: The enormously intricate task of unmasking the true employee in contemporary work environment reveals the dilemmas and complexities embedded in the beguilingly simple but intractable question: who is an employee? The hallmarks of a true employee are shaded in modern work environment given that the actual differences between the categories of “employee” and “independent contractor” are diminishing. The conception of self-employment that links being self-employed inextricably with entrepreneurship, ownership, and autonomy has more to do with ideology than reality. In addressing the opacities of form engendered by “Work on demand via app” and the “Uberisation of work”, the study also attends to the significant and neglected component of labour law’s traditional dilemma. Put simply, how the law identifies an “employer” as a counterparty with an “employee”. Certain features of modern business organisation such as vertical disintegration of production, and their link to the rise of precarious employment underscore the extent to which the concept of employer plays a central role in defining the contours of labour protection. The problems of precarity are deep-seated, long-term and even escalating, especially in compelled and dependent self-employment. Re-appraisal South Africa’s black box of precarious self-employment through the lens of Canadian dependent contractor jurisprudence points to key limitations that should be addressed for a more robust and effective vision of labour regulation. If the definition of “employee” in section 213 of the Labour Relations Act 66 of 1995 is amended to redefine an “employee” to include a “dependent contractor”, this will represent a leap forward in tackling the interlinked problems of disguised employment and precarious self-employment. This statutory redefinition of the employee serves two purposes. First, the dependent contractor category solves the broader challenge for labour regulation of how to extend protection to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of i ii economic dependence, resembling that of an employee. In essence, the intermediate category recognises that, as a matter of fairness persons in economic positions that are closely analogous should be given the same legislative treatment. The second purpose, and one no less important, is to fill in the missing piece of the puzzle in the judicially endorsed three-tiered SITA test for identifying employment relationship. If the dependent contractor category is adopted, the lacuna in the threefold SITA test that has so far escaped scholarly, judicial and legislative will be resolved. In this regard, the study contributes to a line of legal scholarship that has tracked the regulatory trajectory for reforming South Africa’s labour laws. It is hoped that this thesis will provoke a sustained, and more curious engagement with the complexities and capacities of labour regulation
- Full Text:
- Date Issued: 2018
- Authors: Maloka, Tumo Charles
- Date: 2018
- Subjects: Labor laws and legislation
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/16874 , vital:40781
- Description: The enormously intricate task of unmasking the true employee in contemporary work environment reveals the dilemmas and complexities embedded in the beguilingly simple but intractable question: who is an employee? The hallmarks of a true employee are shaded in modern work environment given that the actual differences between the categories of “employee” and “independent contractor” are diminishing. The conception of self-employment that links being self-employed inextricably with entrepreneurship, ownership, and autonomy has more to do with ideology than reality. In addressing the opacities of form engendered by “Work on demand via app” and the “Uberisation of work”, the study also attends to the significant and neglected component of labour law’s traditional dilemma. Put simply, how the law identifies an “employer” as a counterparty with an “employee”. Certain features of modern business organisation such as vertical disintegration of production, and their link to the rise of precarious employment underscore the extent to which the concept of employer plays a central role in defining the contours of labour protection. The problems of precarity are deep-seated, long-term and even escalating, especially in compelled and dependent self-employment. Re-appraisal South Africa’s black box of precarious self-employment through the lens of Canadian dependent contractor jurisprudence points to key limitations that should be addressed for a more robust and effective vision of labour regulation. If the definition of “employee” in section 213 of the Labour Relations Act 66 of 1995 is amended to redefine an “employee” to include a “dependent contractor”, this will represent a leap forward in tackling the interlinked problems of disguised employment and precarious self-employment. This statutory redefinition of the employee serves two purposes. First, the dependent contractor category solves the broader challenge for labour regulation of how to extend protection to persons who have some of the trappings of the independent contractor, but, in reality, are in a position of i ii economic dependence, resembling that of an employee. In essence, the intermediate category recognises that, as a matter of fairness persons in economic positions that are closely analogous should be given the same legislative treatment. The second purpose, and one no less important, is to fill in the missing piece of the puzzle in the judicially endorsed three-tiered SITA test for identifying employment relationship. If the dependent contractor category is adopted, the lacuna in the threefold SITA test that has so far escaped scholarly, judicial and legislative will be resolved. In this regard, the study contributes to a line of legal scholarship that has tracked the regulatory trajectory for reforming South Africa’s labour laws. It is hoped that this thesis will provoke a sustained, and more curious engagement with the complexities and capacities of labour regulation
- Full Text:
- Date Issued: 2018
A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
A comparative exposition of Islamic law relating to the law of husband and wife
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
Maritime piracy legislation for Nigeria
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
The legal framework of concession agreements in Nigerian ports
- Authors: Sanni, Tajudeen
- Date: 2017
- Subjects: Concessions -- Nigeria , Public law -- Nigeria Public-private sector cooperation -- Nigeria Marine terminals -- Economic aspects -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/20537 , vital:29317
- Description: The thesis examines the legal framework for concession agreements in Nigerian ports. The principal question is whether the legal framework for concession in ports is adequate. In order to answer this question, a number of related questions are raised and answered by analysis of laws and proposed laws related to ports. One question relates to what laws regulate concession in Nigeria. The thesis submits that a number of laws governs concession, the principal one being the Infrastructure Concession Regulatory Act (ICRCA).The Act provides that Federal Government agencies may grant the private sector concession for the financing, construction and maintenance of their infrastructure. In order to examine what this means for the port sector, the thesis examines how concession is being currently implemented in the ports. It is pointed out that under concession policy, a whole lot of operational duties which used to be carried out by the Nigerian Ports Authority (NPA) were being transferred to private sector in the new port governance paradigm. For this purpose, the possession of key NPA assets such as terminals for handling cargos were being transferred to the private sector vide concession agreements. The official position is that provisions in the Nigeria Ports Authority Act (NPAA) which allow the NPA to grant leases provide justification for the concession agreement. The concession policy also appoints the Nigeria Shippers Council (NSC) as the economic regulator of the ports to regulate economic activities such as tariff charged in the port. The thesis proceeds to examine the question whether port concession as it is being implemented is actually consistent with NPAA and other relevant laws. The thesis submits that stripping the NPA of a whole string of operational duties on the basis of concession is inconsistent with the provisions of NPAA which establishes the NPA as a regulator, operator and landlord of the port. The thesis posits that the ICRCA does not mandate the NPA to grant concession but rather leaves the decision to do so to the relevant government agencies such as the NPA. It is further submitted that the provision allowing the NPA to lease out its asset must be read with another provision restricting such leases to assets that are not necessary for the performance of NPA’s statutory duties. The thesis argues that this is based on the canon of statutory interpretation that one section of the law must be read holistically with the other sections. It is further argued that designation of NSC as economic regulator not only runs contrary to the Nigeria Shippers Council Act but also Utilities Charges Regulatory Commission Act (UCRCA) which regulates ports tariff and appoints UCRC as the relevant agency for this purpose. The thesis proceeds to examine the question whether the proposed laws, Nigeria Port and Harbour Authority Bill (NPHB) which establishes the port authority as the landlord cum regulator of port and the National Transport Commission Bill (NTCB) which establishes port economic regulator provide adequate legal provisions for port concession. The thesis posits that both bills legalize concession for the performance of core port functions by the private sector. However both contain some clauses that run contrary to the objectives stated therein. NPHB, for example, requires that the bill must be read in the context of the specific objective of separating landlord and regulatory duty from cargo-handling functions in the port. In contrast to this, the bill grants the NPA the duty to carry out port business and the powers to run cargo-handling business in addition to its landlord and regulatory functions. It is proposed that there should be a provision in the port bill providing a separate public company to compete with concessionaires for port businesses while the port authority concentrates on its technical regulatory and landlord duty that will allow it to enter into concession agreements as an independent entity. The thesis makes other proposals for the improvement of the aspects of the bills relating to port concession including inclusion of an outline of terms of concession agreement in the bill, public access to concession agreement, among others. It is recommended that the proposals are considered when the bills are passed into laws and concession agreements renegotiated on the basis of the bills when they become laws.
- Full Text:
- Date Issued: 2017
- Authors: Sanni, Tajudeen
- Date: 2017
- Subjects: Concessions -- Nigeria , Public law -- Nigeria Public-private sector cooperation -- Nigeria Marine terminals -- Economic aspects -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/20537 , vital:29317
- Description: The thesis examines the legal framework for concession agreements in Nigerian ports. The principal question is whether the legal framework for concession in ports is adequate. In order to answer this question, a number of related questions are raised and answered by analysis of laws and proposed laws related to ports. One question relates to what laws regulate concession in Nigeria. The thesis submits that a number of laws governs concession, the principal one being the Infrastructure Concession Regulatory Act (ICRCA).The Act provides that Federal Government agencies may grant the private sector concession for the financing, construction and maintenance of their infrastructure. In order to examine what this means for the port sector, the thesis examines how concession is being currently implemented in the ports. It is pointed out that under concession policy, a whole lot of operational duties which used to be carried out by the Nigerian Ports Authority (NPA) were being transferred to private sector in the new port governance paradigm. For this purpose, the possession of key NPA assets such as terminals for handling cargos were being transferred to the private sector vide concession agreements. The official position is that provisions in the Nigeria Ports Authority Act (NPAA) which allow the NPA to grant leases provide justification for the concession agreement. The concession policy also appoints the Nigeria Shippers Council (NSC) as the economic regulator of the ports to regulate economic activities such as tariff charged in the port. The thesis proceeds to examine the question whether port concession as it is being implemented is actually consistent with NPAA and other relevant laws. The thesis submits that stripping the NPA of a whole string of operational duties on the basis of concession is inconsistent with the provisions of NPAA which establishes the NPA as a regulator, operator and landlord of the port. The thesis posits that the ICRCA does not mandate the NPA to grant concession but rather leaves the decision to do so to the relevant government agencies such as the NPA. It is further submitted that the provision allowing the NPA to lease out its asset must be read with another provision restricting such leases to assets that are not necessary for the performance of NPA’s statutory duties. The thesis argues that this is based on the canon of statutory interpretation that one section of the law must be read holistically with the other sections. It is further argued that designation of NSC as economic regulator not only runs contrary to the Nigeria Shippers Council Act but also Utilities Charges Regulatory Commission Act (UCRCA) which regulates ports tariff and appoints UCRC as the relevant agency for this purpose. The thesis proceeds to examine the question whether the proposed laws, Nigeria Port and Harbour Authority Bill (NPHB) which establishes the port authority as the landlord cum regulator of port and the National Transport Commission Bill (NTCB) which establishes port economic regulator provide adequate legal provisions for port concession. The thesis posits that both bills legalize concession for the performance of core port functions by the private sector. However both contain some clauses that run contrary to the objectives stated therein. NPHB, for example, requires that the bill must be read in the context of the specific objective of separating landlord and regulatory duty from cargo-handling functions in the port. In contrast to this, the bill grants the NPA the duty to carry out port business and the powers to run cargo-handling business in addition to its landlord and regulatory functions. It is proposed that there should be a provision in the port bill providing a separate public company to compete with concessionaires for port businesses while the port authority concentrates on its technical regulatory and landlord duty that will allow it to enter into concession agreements as an independent entity. The thesis makes other proposals for the improvement of the aspects of the bills relating to port concession including inclusion of an outline of terms of concession agreement in the bill, public access to concession agreement, among others. It is recommended that the proposals are considered when the bills are passed into laws and concession agreements renegotiated on the basis of the bills when they become laws.
- Full Text:
- Date Issued: 2017
The safety of navigation and the role of port state jurisdiction: a South African perspective
- Authors: Metuge, Denning Ngomele
- Date: 2017
- Subjects: Harbors -- Law and legislation -- South Africa Law of the sea -- South Africa
- Language: English
- Type: Thesis , Masters , LLD
- Identifier: http://hdl.handle.net/10948/19343 , vital:28853
- Description: This thesis set to examine whether South Africa has incorporated the provisions on vessel navigational safety standards established in the relevant international instruments developed by the IMO: the International Convention for the Safety of Life at Sea, 1974 (SOLAS) as amended, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) as amended, and the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) as amended. It also set to determine the regulatory scope for the exercise of port State jurisdiction from a South African perspective. To establish whether a vessel’s condition complies to prescribed navigational safety standards, the relevant international instruments require States that have ratified the instruments not only to ensure that vessels registered under their flag are inspected for compliance before they can navigate, but that foreign visiting vessels must be surveyed to ensure that they also comply with the safety standards. These surveys are conducted while vessels are in the port of a port State. In addition, the Third United Nations Convention on the Law of the Sea, 1982 (LOSC), provides in article 218 that the port State may enforce anti-pollution regulations committed by a vessel that calls at one of its ports, after committing an illegal discharge outside the territorial waters of the State and its exclusive economic zone (EEZ). However, the provisions of article 218 LOSC have been the center of scholarly debate on the scope of port State jurisdiction (PSJ). Whilst one school of thought holds that PSJ refers only to the provisions of article 218 LOSC, another contends that in defining PSJ, its meaning must be awarded a broader scope to include the regulation of navigational safety standards. Due to the varied opinions on the scope of PSJ, this thesis examined the regulatory framework for the exercise of port State jurisdiction (PSJ) in South Africa. The discussion was relevant to determine the role of PSJ to enhance navigational safety from a South African perspective. This thesis comprised of an in-depth analysis of primary and secondary sources of data relevant to the regulation of navigational safety. The data obtained was critically discussed to establish whether the relevant international navigational safety standards are incorporated into South African law. The process included critical discussions on the principle of jurisdiction, and its exercise by States under international law. The discussions analysed the complexities associated with defining jurisdiction and determining its scope, which are relevant in respect of States’ competence to prescribe and enforce domestic laws, in conformity with the requirements of the LOSC. International law awards jurisdiction to the State to regulate laws within its national territory subject to some restrictions. However, the meaning of jurisdiction is not easily discernible even to lawyers. The discussions showed that the Republic exercises jurisdiction in conformity with generally accepted grounds for the exercise of jurisdiction, and that it is the prerogative of the State to adopt laws it deems necessary within its territory. Thus, the incorporation of international instruments on the safety of navigation is not a forgone conclusion, as it is dependent on the will of the State to ratify, and give effect to the provisions of the relevant instruments in its domestic law. Furthermore, this thesis discussed the relevant international safety instruments in contrast to the provisions of South African merchant shipping regulations, to identify any regulatory gaps in the incorporation of their provisions in South African law. Against a background of comparative analyses of the international norms and the provisions of South African merchant shipping regulations, this research found that a significant number of the relevant international safety instruments are incorporated into south African law by Merchant Shipping Act (MSA) as amended, and regulations made in terms of the Act. The provisions of South African merchant shipping regulations are administered by the South African Maritime Safety Authority (SAMSA). However, whilst this research found little doubt that the provisions of the STCW and COLREGs are given full effect in South African law, it identified regulatory differences in respect of the most relevant of all international instruments with regard to the safety of navigation, SOLAS. Some SOLAS provisions in respect of navigational safety are not incorporated into domestic law, and in some instances where they are incorporated, the provisions of domestic law contrasts that of SOLAS, or are not as comprehensive. For instance, there is a contrast in the provisions of the Navigation Bridge Visibility Regulations (NVBR), that make the regulations applicable to vessels of 45m or more in length constructed before 1 July 2008. Whereas, SOLAS regulations in respect of the navigation bridge visibility standards of vessels apply to vessels 55m or more length. Furthermore, a 5 months extension may be awarded in respect of a safety certificate issued for a South African vessel that is not in the Republic on the date of its expiry. This provision goes beyond the requirement of SOLAS, which requires that no extension be granted for a period longer than 3 months. Likewise, SAMSA may grant an extension of a safety certificate other than a cargo vessel construction certificate, for a period no longer than five month to enable a foreign vessel to complete its journey to its country of registry or point of inspection. This extension again, is longer than the 3 months requirement under SOLAS. Moreover, the survey requirements applicable to all South African vessels where ever they may be, and all foreign merchant vessels that come into the Republic, do not reflect the specific provisions of SOLAS. A significant amendment was made to SOLAS by SOLAS PROT 1988. SOLAS PROT 1988 introduced the harmonised system of survey and certification (HSSC) into the provisions of SOLAS, thereby harmonising its survey standards with those of other international instruments. SOLAS PROT 1988 has come into force for all States that have ratified the Protocol since the year 2000. This thesis finds that while South Africa is a party to SOLAS as amended by SOLAS PROT 1978, the Republic has not yet ratified SOLAS PROT 1988. Hence, the Republic is not bound to any requirements of SOLAS PROT 1988. Furthermore, although States that are not party to an international instrument requiring the implementation of the HSSC are invited to implement the HSSC anyway, there is no provision in the MSA that incorporates the HSSC. Of central importance to the regulation of merchant shipping standards, States are not only required to adopt domestic laws giving effect to international standards, but they are required to implement international standards in a uniform manner. This is aimed at avoiding a merchant shipping arena plagued by conflicting unilateral domestic rules. SOLAS PROT 1988 has been ratified by States comprising of 96% of the world’s merchant fleet by tonnage. The massive acceptance of SOLAS PROT 1988 is indicative of the international trend, towards uniformity in the implementation of international norms. This thesis recommends that, for the Republic’s merchant shipping regulations to reflect the international trend, the Republic should amend its merchant shipping regulation to incorporate the HSSC. Alternatively, the Republic may ratify SOLAS PROT 1988, and give full effect to its survey and certification standards and the relevant navigational safety provisions in the ANNEX of SOLAS.In addition, whilst a debate abounds on the international scene in respect of the scope of port State jurisdiction, the analysis of the regulatory framework for the exercise of port State jurisdiction in South Africa found that the regulatory framework for the exercise of port State jurisdiction by the Republic includes the regulation of not only environment-related navigational standards prescribed by article 218 LOSC, but also, navigational safety standards, and significantly, its scope is not burdened by the international law limitations to the exercise of coastal State jurisdiction. As such, a recommendation is made to the effect that when defining PSJ, its scope should not be limited to the enforcement of standards contained in article 218 LOSC, rather, it should be awarded a broader scope to include the regulation of other navigational standards including safety.
- Full Text:
- Date Issued: 2017
- Authors: Metuge, Denning Ngomele
- Date: 2017
- Subjects: Harbors -- Law and legislation -- South Africa Law of the sea -- South Africa
- Language: English
- Type: Thesis , Masters , LLD
- Identifier: http://hdl.handle.net/10948/19343 , vital:28853
- Description: This thesis set to examine whether South Africa has incorporated the provisions on vessel navigational safety standards established in the relevant international instruments developed by the IMO: the International Convention for the Safety of Life at Sea, 1974 (SOLAS) as amended, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) as amended, and the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) as amended. It also set to determine the regulatory scope for the exercise of port State jurisdiction from a South African perspective. To establish whether a vessel’s condition complies to prescribed navigational safety standards, the relevant international instruments require States that have ratified the instruments not only to ensure that vessels registered under their flag are inspected for compliance before they can navigate, but that foreign visiting vessels must be surveyed to ensure that they also comply with the safety standards. These surveys are conducted while vessels are in the port of a port State. In addition, the Third United Nations Convention on the Law of the Sea, 1982 (LOSC), provides in article 218 that the port State may enforce anti-pollution regulations committed by a vessel that calls at one of its ports, after committing an illegal discharge outside the territorial waters of the State and its exclusive economic zone (EEZ). However, the provisions of article 218 LOSC have been the center of scholarly debate on the scope of port State jurisdiction (PSJ). Whilst one school of thought holds that PSJ refers only to the provisions of article 218 LOSC, another contends that in defining PSJ, its meaning must be awarded a broader scope to include the regulation of navigational safety standards. Due to the varied opinions on the scope of PSJ, this thesis examined the regulatory framework for the exercise of port State jurisdiction (PSJ) in South Africa. The discussion was relevant to determine the role of PSJ to enhance navigational safety from a South African perspective. This thesis comprised of an in-depth analysis of primary and secondary sources of data relevant to the regulation of navigational safety. The data obtained was critically discussed to establish whether the relevant international navigational safety standards are incorporated into South African law. The process included critical discussions on the principle of jurisdiction, and its exercise by States under international law. The discussions analysed the complexities associated with defining jurisdiction and determining its scope, which are relevant in respect of States’ competence to prescribe and enforce domestic laws, in conformity with the requirements of the LOSC. International law awards jurisdiction to the State to regulate laws within its national territory subject to some restrictions. However, the meaning of jurisdiction is not easily discernible even to lawyers. The discussions showed that the Republic exercises jurisdiction in conformity with generally accepted grounds for the exercise of jurisdiction, and that it is the prerogative of the State to adopt laws it deems necessary within its territory. Thus, the incorporation of international instruments on the safety of navigation is not a forgone conclusion, as it is dependent on the will of the State to ratify, and give effect to the provisions of the relevant instruments in its domestic law. Furthermore, this thesis discussed the relevant international safety instruments in contrast to the provisions of South African merchant shipping regulations, to identify any regulatory gaps in the incorporation of their provisions in South African law. Against a background of comparative analyses of the international norms and the provisions of South African merchant shipping regulations, this research found that a significant number of the relevant international safety instruments are incorporated into south African law by Merchant Shipping Act (MSA) as amended, and regulations made in terms of the Act. The provisions of South African merchant shipping regulations are administered by the South African Maritime Safety Authority (SAMSA). However, whilst this research found little doubt that the provisions of the STCW and COLREGs are given full effect in South African law, it identified regulatory differences in respect of the most relevant of all international instruments with regard to the safety of navigation, SOLAS. Some SOLAS provisions in respect of navigational safety are not incorporated into domestic law, and in some instances where they are incorporated, the provisions of domestic law contrasts that of SOLAS, or are not as comprehensive. For instance, there is a contrast in the provisions of the Navigation Bridge Visibility Regulations (NVBR), that make the regulations applicable to vessels of 45m or more in length constructed before 1 July 2008. Whereas, SOLAS regulations in respect of the navigation bridge visibility standards of vessels apply to vessels 55m or more length. Furthermore, a 5 months extension may be awarded in respect of a safety certificate issued for a South African vessel that is not in the Republic on the date of its expiry. This provision goes beyond the requirement of SOLAS, which requires that no extension be granted for a period longer than 3 months. Likewise, SAMSA may grant an extension of a safety certificate other than a cargo vessel construction certificate, for a period no longer than five month to enable a foreign vessel to complete its journey to its country of registry or point of inspection. This extension again, is longer than the 3 months requirement under SOLAS. Moreover, the survey requirements applicable to all South African vessels where ever they may be, and all foreign merchant vessels that come into the Republic, do not reflect the specific provisions of SOLAS. A significant amendment was made to SOLAS by SOLAS PROT 1988. SOLAS PROT 1988 introduced the harmonised system of survey and certification (HSSC) into the provisions of SOLAS, thereby harmonising its survey standards with those of other international instruments. SOLAS PROT 1988 has come into force for all States that have ratified the Protocol since the year 2000. This thesis finds that while South Africa is a party to SOLAS as amended by SOLAS PROT 1978, the Republic has not yet ratified SOLAS PROT 1988. Hence, the Republic is not bound to any requirements of SOLAS PROT 1988. Furthermore, although States that are not party to an international instrument requiring the implementation of the HSSC are invited to implement the HSSC anyway, there is no provision in the MSA that incorporates the HSSC. Of central importance to the regulation of merchant shipping standards, States are not only required to adopt domestic laws giving effect to international standards, but they are required to implement international standards in a uniform manner. This is aimed at avoiding a merchant shipping arena plagued by conflicting unilateral domestic rules. SOLAS PROT 1988 has been ratified by States comprising of 96% of the world’s merchant fleet by tonnage. The massive acceptance of SOLAS PROT 1988 is indicative of the international trend, towards uniformity in the implementation of international norms. This thesis recommends that, for the Republic’s merchant shipping regulations to reflect the international trend, the Republic should amend its merchant shipping regulation to incorporate the HSSC. Alternatively, the Republic may ratify SOLAS PROT 1988, and give full effect to its survey and certification standards and the relevant navigational safety provisions in the ANNEX of SOLAS.In addition, whilst a debate abounds on the international scene in respect of the scope of port State jurisdiction, the analysis of the regulatory framework for the exercise of port State jurisdiction in South Africa found that the regulatory framework for the exercise of port State jurisdiction by the Republic includes the regulation of not only environment-related navigational standards prescribed by article 218 LOSC, but also, navigational safety standards, and significantly, its scope is not burdened by the international law limitations to the exercise of coastal State jurisdiction. As such, a recommendation is made to the effect that when defining PSJ, its scope should not be limited to the enforcement of standards contained in article 218 LOSC, rather, it should be awarded a broader scope to include the regulation of other navigational standards including safety.
- Full Text:
- Date Issued: 2017
Constitutionalism and separation of powers in South Africa after the promulgation of the 1996 constitution : a comparative perspective
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
Hate speech as a limitation to freedom of expression
- Authors: Botha, Joanna Catherine
- Date: 2016
- Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/9054 , vital:26460
- Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
- Full Text:
- Date Issued: 2016
- Authors: Botha, Joanna Catherine
- Date: 2016
- Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/9054 , vital:26460
- Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
- Full Text:
- Date Issued: 2016
The process of naturalisation of refugees under international and South African law and its implications for human rights
- Authors: Masumbe, Paul Sakwe
- Date: 2015
- Subjects: Naturalization -- Africa Human rights -- Africa Refugees -- Legal status, laws, etc. -- Sout -- Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/5608 , vital:29351
- Description: This study seeks to examine the naturalisation of refugees under international law with specific focus on the South African refugee system. The universalised nature of human rights and the difficulties of refugees finding new roots in host states form the basis of this study. This study takes a closer look at the South African refugee system and the path to naturalisation of refugees. It identifies policy and legal gaps in the process of naturalisation of refugees and argues that the practice as it stands today, fundamentally abuses the rights of refugees and questions South Africa’s good faith in meeting its international obligations under the 1951 Refugee Convention. It argues further that the biopolitical philosophy upon which South African citizenship is anchored is itself a hindrance to the realisation of efforts aimed at naturalising refugees and their descendants. The research methodology used in this study is non-empirical. This is so because the study is based on available data, information already available in print or on the internet. The study attempts to accomplish the above by undertaking an in-depth analysis of the history of refugees, the current position of naturalisation under international law, and identifies the inherent challenges. In the South African context, the study makes use of extensive statutory, constitutional and case law materials to justify that the current treatment of refugees in their quest for naturalisation is indefensible within the context of a human rights-based approach and the dictates of the Constitution. This study concludes by making recommendations that would help close the legal and policy gaps that obtain presently. These include amendments to the Refugees, Immigration and Citizenship Acts and strengthening policy implementation at the DHA. It is hoped that the recommendations will strengthen and evolve a human rights culture and bring refugee, immigration and citizenship laws in line with the Constitution. It will also pave the way for a more just and peaceful South Africa as she strives to meet her obligations under regional and international law.
- Full Text:
- Date Issued: 2015
- Authors: Masumbe, Paul Sakwe
- Date: 2015
- Subjects: Naturalization -- Africa Human rights -- Africa Refugees -- Legal status, laws, etc. -- Sout -- Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/5608 , vital:29351
- Description: This study seeks to examine the naturalisation of refugees under international law with specific focus on the South African refugee system. The universalised nature of human rights and the difficulties of refugees finding new roots in host states form the basis of this study. This study takes a closer look at the South African refugee system and the path to naturalisation of refugees. It identifies policy and legal gaps in the process of naturalisation of refugees and argues that the practice as it stands today, fundamentally abuses the rights of refugees and questions South Africa’s good faith in meeting its international obligations under the 1951 Refugee Convention. It argues further that the biopolitical philosophy upon which South African citizenship is anchored is itself a hindrance to the realisation of efforts aimed at naturalising refugees and their descendants. The research methodology used in this study is non-empirical. This is so because the study is based on available data, information already available in print or on the internet. The study attempts to accomplish the above by undertaking an in-depth analysis of the history of refugees, the current position of naturalisation under international law, and identifies the inherent challenges. In the South African context, the study makes use of extensive statutory, constitutional and case law materials to justify that the current treatment of refugees in their quest for naturalisation is indefensible within the context of a human rights-based approach and the dictates of the Constitution. This study concludes by making recommendations that would help close the legal and policy gaps that obtain presently. These include amendments to the Refugees, Immigration and Citizenship Acts and strengthening policy implementation at the DHA. It is hoped that the recommendations will strengthen and evolve a human rights culture and bring refugee, immigration and citizenship laws in line with the Constitution. It will also pave the way for a more just and peaceful South Africa as she strives to meet her obligations under regional and international law.
- Full Text:
- Date Issued: 2015
Coordinating legal aid services in civil matters for indigent people in eThekwini: a model for improved access to justice
- Authors: Holness, David Roy
- Date: 2014
- Subjects: Legal assistance to the poor -- South Africa Legal aid services -- South Africa Civil procedure -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/10981 , vital:26864
- Description: The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.
- Full Text:
- Date Issued: 2014
- Authors: Holness, David Roy
- Date: 2014
- Subjects: Legal assistance to the poor -- South Africa Legal aid services -- South Africa Civil procedure -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/10981 , vital:26864
- Description: The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.
- Full Text:
- Date Issued: 2014
Principles of South African prison law and proposals for their implementation
- Authors: Hornigold, Angus Lloyd
- Date: 2013
- Subjects: Prisons -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10297 , http://hdl.handle.net/10948/d1021033
- Description: There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
- Full Text:
- Date Issued: 2013
- Authors: Hornigold, Angus Lloyd
- Date: 2013
- Subjects: Prisons -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10297 , http://hdl.handle.net/10948/d1021033
- Description: There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
- Full Text:
- Date Issued: 2013
The Impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa
- Authors: Gwarinda, T A
- Date: 2013
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/1421 , vital:26554
- Description: The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
- Full Text:
- Date Issued: 2013
- Authors: Gwarinda, T A
- Date: 2013
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/1421 , vital:26554
- Description: The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
- Full Text:
- Date Issued: 2013
The interaction of children's rights, education rights and freedom of religion in South African schools
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
- Full Text:
- Date Issued: 2013
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
- Full Text:
- Date Issued: 2013
The role of reasonableness in the review of CCMA arbitration awards in South Africa : an English law comparison
- Authors: Botma-Kleu, Carli Helena
- Date: 2013
- Subjects: Arbitration and award -- South Africa , Labor courts -- South Africa , Law -- South Africa -- English influences
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10291 , http://hdl.handle.net/10948/d1020196
- Description: In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.
- Full Text:
- Date Issued: 2013
- Authors: Botma-Kleu, Carli Helena
- Date: 2013
- Subjects: Arbitration and award -- South Africa , Labor courts -- South Africa , Law -- South Africa -- English influences
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10291 , http://hdl.handle.net/10948/d1020196
- Description: In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.
- Full Text:
- Date Issued: 2013
Towards an efficient Namibian labour dispute resolution system : compliance with international labour standards and a comparison with the South African system
- Authors: Musukubili, Felix Zingolo
- Date: 2013
- Subjects: Dispute resolution (Law) -- Namibia , Dispute resolution (Law) -- South Africa , Labor laws and legislation , Arbitration, Industrial -- Namibia , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10243 , http://hdl.handle.net/10948/d1018942
- Description: The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2013
- Authors: Musukubili, Felix Zingolo
- Date: 2013
- Subjects: Dispute resolution (Law) -- Namibia , Dispute resolution (Law) -- South Africa , Labor laws and legislation , Arbitration, Industrial -- Namibia , Arbitration, Industrial -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10243 , http://hdl.handle.net/10948/d1018942
- Description: The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2013