Unfair discrimination and affirmative action in the South African Police Service
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
- Authors: Taylor, Nicola
- Date: 2012
- Subjects: Discrimination in employment -- South Africa , Affirmative action programs -- South Africa , South African Police
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/8693 , vital:26421
- Description: Affirmative action is the purposeful, planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on a local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminted by unfair discrimination in the past. the Emplyment Equity Act was brought into the South African government to bring equality to all. Unfair discrimination is a branch of affirmative action in which individuals are discriminated against not only on race, but includes colour, sex, religion, age, disability, language and the likes. Section 9 of the Constitution of South Africa prohibits unfair discrimination against any person on any of the listed grounds. Section 2 of the Employment Equity Act is in place to aim to achieve equity within the workplace by promoting equal opportunity and fair treatment as well as eliminating unfair discrimination. Section 6, like the Constitution, lists grounds against which an individual may not be discriminated. Historically, the South African Police Services were a deeply-routed racist organization, where only white males were afforded better opportunities. This however changed after South Africa became a democratic country and with the introduction of the SAPS Act. Transformation within the SAPS took place after South Africa moved towards a democratic society.
- Full Text: false
- Date Issued: 2012
A comparative analysis of the development of performers' rights in the United Kingdom and South Africa
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
- Authors: Wagenaar, Tanya
- Date: 2011
- Subjects: Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10215 , http://hdl.handle.net/10948/1442 , Copyright -- Performing rights -- Great Britain , Copyright -- Performing rights -- South Africa
- Description: Although performers have been rife for centuries, no legal regime was required for their protection owing to the fact that the nature of their performances was transitory. It was not until the invention of the phonogram in 1877, that the need to provide performers with the means to protect the unauthorised uses of their performances became an issue. The subsequent development of performers' rights has been fuelled by the rapid technological developments of the modern age which has prompted the international community to respond through various international instruments. Performers initially sought protection in terms of the Berne Convention in 1886, but it was not until the Rome Convention in 1961 that performers were first accorded international recognition. This was followed by the TRIPs Agreement in 1994 and the WPPT in 1996. This work involves an investigation into the historical development of performers' rights in the United Kingdom and South Africa. This is followed by a comparative analysis of the current state of performers' rights as between the United Kingdom and South Africa with a view to proposing recommendations for improving the level of protection accorded performers in South Africa. Arguments in favour of a regime of performers' rights as well as possible counter-arguments have been advanced. The general development of performers' rights as a related or neighbouring right to copyright is focussed on. The development of performers' rights in the United Kingdom is discussed with reference to the first English legislative form of protection, namely the Dramatic and Musical Performers' Protection Act, 1925. This Act only provided performers with criminal remedies, a view that prevailed through several subsequent enactments designed to protect performers as a result of ratification of the Rome Convention. It was not until 1988 when the decision in Rickless v United Artists Corp prompted the legislature to grant performers with enforceable civil remedies through the enactment of the Copyright, Designs and Patents Act, 1988. Several European Union Council Directives aimed at harmonising the law relating to performers' rights throughout the Union were issued, mainly in response to the TRIPS Agreement. In order to comply with these Directives, the United Kingdom passed Regulations to bring about the necessary amendments to the Copyright, Designs and Patents Act. Performers in the United Kingdom were granted moral rights in 2006 as a result of the United Kingdom's ratification of the WPPT. The development of performers' rights in South Africa has been slow when compared to that of the United Kingdom. It was not until 1967 that performers were first legally recognised in South Africa. Although South Africa has yet to ratify the Rome Convention, it was stated in South African Broadcasting Corporation v Pollecutt that the Act was clearly passed with a view to complying with the Convention. South Africa's ratification of the TRIPs Agreement brought about amendments to the Act, particularly regarding the duration of protection which was increased from 20 to 50 years. Although South Africa played an active role in the conclusion of the WPPT, it has yet to ratify it. However, amendments were made to the Act in line with this Treaty, such as the incorporation of “expressions of folklore” within the ambit of protection, and the granting of a right to receive royalties whenever a performer's performances are broadcast. This is commonly known as needletime. South Africa's reluctance to grant performers with moral rights as provided for by the Treaty is noteworthy. The introduction of needletime into South African law has resulted in a fierce debate between collecting societies (who represent authors and performers) and the NAB (who represent users of performances). Mainly as a result of this dispute, performers in South Africa have, to date, not received any royalties due to them. The protection of traditional knowledge has also received attention of late with the Intellectual Property Laws Amendment Bill, 2010 which aims to bring traditional knowledge inter alia within the ambit of the Performers' Protection Act. The current state of performers' rights in the United Kingdom and South Africa are compared in order to identify ways in which the level of protection accorded performers in South Africa could be improved. The Copyright, Designs and Patents Act is compared with the Performers' Protection Act through emphasis being placed on the definition of a “performer”; the definition of a “performance”; the nature of performers' rights; exceptions to infringement; the term of protection; the retrospectivity of the legislation; and the enforcement measures in place. Upon analysis, it was found that the Performers' Protection Act can be amended in several ways in order to increase the level of protection accorded performers in South Africa.
- Full Text:
- Date Issued: 2011
An analysis of the elements of genocide with reference to the South African farmer's case
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
- Authors: Du Toit, Johanna Helena
- Date: 2011
- Subjects: Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10168 , http://hdl.handle.net/10948/1568 , Genocide -- South Africa , Human rights -- South Africa , Farmers -- South Africa
- Description: The definition of genocide encompasses not only the killing of a protected group as is so often erroneously believed, but also inter alia the causing of serious bodily and mental harm to a group and deliberately inflicting conditions of life on a group calculated to bring about its destruction in whole or in part. Eight stages have been identified through which conventional genocide goes. There is a closed list of four groups named in the Genocide Convention in respect of which genocide can be perpetrated. Problems have been experienced with the classification and the determination whether a group should qualify or not. In answer to this problem, the definition of the groups should be seen cohesively and attempts should preferably not be made to compartmentalise any group suspected of being targeted for genocide. The special intent required for genocide sets it apart from other crimes against humanity. The intention that needs to be proven is the desire to exterminate a group as such in whole or in part. The mention of “in part” opens the door for genocide to be perpetrated against a small sub-group which conforms to the definition of a group. The white Afrikaner farmer forms part of the larger white Afrikaner group residing in South Africa. Incitement to genocide is an inchoate crime and is regarded as a lesser crime reflected in lower sentences being passed for incitement than for genocide itself. The requirements are that the incitement must be direct and public. The required intention to incite must also be proven for a conviction to follow. The farmer who laid the complaint with the International Criminal Court, did so in the hope that the Prosecutor would utilise his or her proprio motu powers to instigate an investigation in South Africa regarding white Afrikaner farmers. The complaint and petition as well as the statistics used by the farmer paint the picture of incitement to genocide and possible genocide. The allegations are not specific and will have to be proven in a court of law for any such finding to follow. , Abstract
- Full Text:
- Date Issued: 2011
An evaluation of South Africa's legislation to combat organised crime
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011
- Authors: Nkosi, Zaba Philip
- Date: 2011
- Subjects: Criminal law , Legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10170 , http://hdl.handle.net/10948/1566 , Criminal law , Legislation -- South Africa
- Description: Organised crime is a global phenomenon. It is a problem in South Africa as it is a problem in most countries. International and regional organisations, in particular, United Nations, Financial Action Task Force (FATF), and African Union (AU), have developed legislative measures and laid down minimum standards to assist party and non-party states to combat the scourge. Member countries and signatories to those instruments are ever encouraged to bring about national legislative and regulatory frameworks to criminalise predicate crimes, curb money laundering, confiscate instrumentalities and proceeds of such crimes, and to co-operate amongst themselves in their endeavours to fight the scourge. South Africa is a signatory and state party to the Vienna Convention, the Palermo Convention, African Union conventions, Southern African Development Community protocols, and has embraced Financial Action Task Force Forty Recommendations. As a signatory and a state party to these instruments, South Africa has passed, in its parliament, a vast array of legislative tools aimed at complimenting the criminalisation of organised crime related conduct (thus extending range of predicate crimes, and has also put in place preventative measures to be taken by financial, non-financial and professional institutions against money laundering practices, in order to deny organised criminals of illicit proceeds and a further use of property as an instrument of crime. The legislative framework is also aimed to foster international co-operation in the form of mutual assistance, extradition and enforcement of foreign judgements and sentences. There is a public perception, though, that crime pays in South Africa. The general public perception is that crime pays because the laws of the country always lag behind the ingenuity of organised criminals who, it is believed, are always a step or two ahead in better organisation of their nefarious activities and in the use of sophisticated methods of execution to achieve their goals. The objective of this research is to evaluate existing South African laws intended to deal with organised crime with relevant international instruments in order to establish whether the laws are adequate and are being implemented effectively to fight the scourge. The hypothesis of this research project is that South Africa has adequate laws (compliance); however, the problem lies in their implementation (enforcement). To obtain the necessary information to achieve the said objectives, the views made by various writers on organised crime were considered. The legislation currently in place to combat organised crime was identified and measured against aforementioned instruments in order to establish whether they do achieve the minimum standards set for the fight against organised crime. The comparison was done following the perspectives contained in these instruments in chapter form. In this regard, over-achievements as well as under-achievements were highlighted. For an example, article 6 of the Palermo convention instructs state parties to include as predicate offences all serious crime, punishable by maximum deprivation of liberty of at least 4 years or more, for money laundering. The Prevention of Organised Crime Act (POCA), on the other hand, contains no list of specific predicate offences, but makes an open-ended reference to the „proceeds of unlawful activities‟. It is, therefore, all-encompassing. Another example can be found in the South African definition of corruption. The South African statutory definition penalises corruption „in the widest sense and in all its forms, whereas that in the Palermo Convention is limited or restricted, as it does not instruct for the criminalisation of corruption involving foreign public officials or international civil servants. The evaluation of existing South African laws shows that South Africa has adequate laws to fight organised crime. There is, however, a room for improvement in their implementation, particularly in the prosecution of organised crimes. The South African government is urged to make available adequate financial resources to enable prosecutors to carry out their functions effectively in the fight against the scourge.
- Full Text:
- Date Issued: 2011
Balancing the educator's rights to fair labour practices and to strike with the right to education
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
- Full Text:
- Date Issued: 2011
Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right
- Authors: Batchelor, Bronwyn Le Ann
- Date: 2011
- Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
- Full Text:
- Date Issued: 2011
- Authors: Batchelor, Bronwyn Le Ann
- Date: 2011
- Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
- Full Text:
- Date Issued: 2011
Dismissal law in the education sector
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
- Authors: Myeki, Mfundo
- Date: 2011
- Subjects: Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10213 , http://hdl.handle.net/10948/1567 , Industrial relations -- South Africa , Labor laws and legislation , Employees -- Dismissal of -- Law and legislation , Labor contract -- South Africa
- Description: This treatise will therefore critically discuss fairness requirements in dismissal law within the context of the education sector from: i) the perspective of a dismissed employee; and ii) the perspective of an employer who wishes to dismiss employees fairly; and iii) the perspective of a deemed dismissal. It will be proper to flow this discussion from the premises of what should be considered procedural and substantive fairness in dismissals.
- Full Text:
- Date Issued: 2011
Innovations introduced into the South African criminal justice by the child justice Act 75 of 2008
- Jokani, Mkhuseli Christopher
- Authors: Jokani, Mkhuseli Christopher
- Date: 2011
- Subjects: Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10176 , http://hdl.handle.net/10948/1571 , Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Description: The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
- Full Text:
- Date Issued: 2011
- Authors: Jokani, Mkhuseli Christopher
- Date: 2011
- Subjects: Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10176 , http://hdl.handle.net/10948/1571 , Children -- Legal status, laws etc. -- South Africa , Juvenile justice, Administration of -- South Africa , Criminal law -- South Africa
- Description: The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.
- Full Text:
- Date Issued: 2011
The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children
- Authors: Hlophe, Stanley Siphiwe
- Date: 2011
- Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
- Full Text:
- Date Issued: 2011
- Authors: Hlophe, Stanley Siphiwe
- Date: 2011
- Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
- Full Text:
- Date Issued: 2011
The concept of decent work in a South African context
- Authors: Ndung'u, Agnes
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10199 , http://hdl.handle.net/10948/1618 , Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Description: Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
- Full Text:
- Date Issued: 2011
- Authors: Ndung'u, Agnes
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10199 , http://hdl.handle.net/10948/1618 , Labor laws and legislation -- South Africa -- Eastern Cape , Labor supply -- South Africa , Labor policy -- South Africa , Labor laws and legislation, International , Labor economics -- South Africa
- Description: Work is a key component of people's lives and most people aspire to have work that is sufficient to provide a living wage so as to lift them out of poverty and social exclusion and also that is secure enough to guarantee a decent livelihood. The Decent Work Agenda has gained much popularity in recent years and proposes an approach to development that emphasizes fair and sustainable working opportunities that include principles of rights at work, social protection and social dialogue. Various issues have been raised in this study. Firstly, the decent work concept needs to be understood comprehensively as there is misconception about what the concept implies and what it can achieve. Secondly, it is acknowledged that there are huge decent work deficits in South Africa especially in the informal sector which impede on the advancement of people‟s conditions of living, cause people to live lives of poverty as well as deprive people of a life of dignity. This is despite decent work having a solid basis in labour legislation and also South Africa being bound by international law and principles concerning decent work. The study observes that reform in labour legislation is recommended to help overcome the decent work deficits. The ILO has proposed the Decent Work Country Programmes to help countries align their economic development goals with the international goal of the achievement of Decent Work for all. South Africa also has its own solutions such as the New Growth Path as well as other policies. The main issue however is how these policies can be implemented effectively and how decent work can be achieved against a backdrop of the socio – economic challenges that South Africa faces.
- Full Text:
- Date Issued: 2011
The constitutional rights of 'benefactor children' and 'saviour siblings' to bodily intergrity and autonomy
- Authors: Du Plessis, Emma Kate
- Date: 2011
- Subjects: Children's rights , Civil rights , Genetic engineering
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10283 , http://hdl.handle.net/10948/d1010420 , Children's rights , Civil rights , Genetic engineering
- Description: In modern society, children are acknowledged as bearers of both children‟s rights and all other rights in the Bill of Rights which generally apply to children. One important right, outside of section 28, is that of bodily integrity or the right to control and decide what happens to their body. Therefore, children theoretically have the right to consent to medical treatment and surgery. However, children are generally deemed to lack the necessary maturity to make decisions of this nature and require parental consent before any medical procedure may be performed. Following the enactment of the Children‟s Act 38 of 2005, the age of consent for medical intervention was lowered to the uniform age of twelve. Children above the age of twelve are recognised as having the capacity to make their own decisions in respect of bodily integrity, whereas those under twelve still require parental consent. While this may be a positive evelopment, it is potentially problematic for two groups of children, known as „benefactor children‟ and „saviour siblings‟. In the last 50 years, there has been a noticeable advancement in the field of genetic research. One such development is the possibility of creating one child to save the life of another through tissue or organ donation. This has provided options to parents of children with life threatening conditions where before, there was little hope of a cure. Now, at the request of these parents, children can be specifically “genetically engineered” as an embryo, to become a tissue or organ match to a sick sibling. These children are known as „saviour siblings‟. Another group of children has emerged. While not the result of “genetic engineering”, they serve a similar purpose in being potential life-saving donors to an ill sibling and are known as „benefactor children‟. Both categories of children enjoy the protection of fundamental rights. For those who are under twelve years of age however, the right to bodily integrity can be infringed upon by the proposed surgical removal of organs or tissue for the benefit of a sick sibling, based purely on a parent‟s consent. At stake too, is the right to reproductive autonomy. Parents bear children for a number of different reasons, which can include raising a child to save the life of another. As they have the right to reproductive autonomy, adults are able to decide when they want children and for what reason they want children, which can include the various techniques used to bring about „saviour siblings‟. However, as rights are mutually interrelated and nterdependent, they cannot be viewed in isolation. Therefore, it must be asked: does a person‟s right to reproductive autonomy, as guaranteed by the Constitution, justify interference with an embryo? As an embryo is not recognised in South African law as a legal subject, it will be difficult to justify interference with this right on this basis. The right to consent to medical intervention only from age twelve was described as potentially problematic for „benefactor children‟ and „saviour siblings‟, as parents with seriously ill children may become so emotionally burdened, that they place the welfare of the sick child over that of the healthy child. Thus, it is possible that parents will consent to any and all procedures on the „benefactor child‟ or „saviour sibling‟, regardless of the implications to the health and suffering of the healthy child. Section 28(2) of the Constitution states that the child‟s best interests are of paramount importance but, it must be asked, whose best interests are more important when more than one child is involved? As this is a decision parents are incapable of making at that time, the decision should be made by a neutral, impartial and unemotional third party such as the Court, which can be assisted by the Family Advocate and an ombudsman, who are experts in assisting children and promoting their best interests. Presently, South African law does not expressly address „saviour siblings‟. However, with few changes to the National Health Act and other Regulations, this is an area which could be regulated in time. These changes could include finalising the draft regulations as well as providing a list of the medical and dental purposes for which blood and tissue can be removed and should make specific reference to the removal of tissue, blood or blood products to treat a sick sibling. It is also imperative that South Africa regulates these matters now, as „saviour siblings‟ are no longer simply a matter for the future. Furthermore, legislation needs to be amended and enacted to prevent the law from becoming out-dated and redundant, leaving „benefactor children‟ and „saviour siblings‟ vulnerable while law is being drafted. In that international law is silent on the matter, South Africa would be well advised to consider foreign law such as the United Kingdom, in developing its law. As the United Kingdom has developed a National Board, so too should South Africa, as this would assist in regulating „saviour siblings‟ by allowing members to review each proposed case of „saviour siblings‟. This is merely one recommendation of several which could facilitate a smooth, controlled regulation of a highly emotional topic. Children remain one of the most vulnerable groups in society and their rights are often susceptible to infringement or abuse. It is incumbent on the law to ensure that, wherever possible, these rights are protected, especially as science continues to advance and it becomes more difficult to determine what is morally correct.
- Full Text:
- Date Issued: 2011
- Authors: Du Plessis, Emma Kate
- Date: 2011
- Subjects: Children's rights , Civil rights , Genetic engineering
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10283 , http://hdl.handle.net/10948/d1010420 , Children's rights , Civil rights , Genetic engineering
- Description: In modern society, children are acknowledged as bearers of both children‟s rights and all other rights in the Bill of Rights which generally apply to children. One important right, outside of section 28, is that of bodily integrity or the right to control and decide what happens to their body. Therefore, children theoretically have the right to consent to medical treatment and surgery. However, children are generally deemed to lack the necessary maturity to make decisions of this nature and require parental consent before any medical procedure may be performed. Following the enactment of the Children‟s Act 38 of 2005, the age of consent for medical intervention was lowered to the uniform age of twelve. Children above the age of twelve are recognised as having the capacity to make their own decisions in respect of bodily integrity, whereas those under twelve still require parental consent. While this may be a positive evelopment, it is potentially problematic for two groups of children, known as „benefactor children‟ and „saviour siblings‟. In the last 50 years, there has been a noticeable advancement in the field of genetic research. One such development is the possibility of creating one child to save the life of another through tissue or organ donation. This has provided options to parents of children with life threatening conditions where before, there was little hope of a cure. Now, at the request of these parents, children can be specifically “genetically engineered” as an embryo, to become a tissue or organ match to a sick sibling. These children are known as „saviour siblings‟. Another group of children has emerged. While not the result of “genetic engineering”, they serve a similar purpose in being potential life-saving donors to an ill sibling and are known as „benefactor children‟. Both categories of children enjoy the protection of fundamental rights. For those who are under twelve years of age however, the right to bodily integrity can be infringed upon by the proposed surgical removal of organs or tissue for the benefit of a sick sibling, based purely on a parent‟s consent. At stake too, is the right to reproductive autonomy. Parents bear children for a number of different reasons, which can include raising a child to save the life of another. As they have the right to reproductive autonomy, adults are able to decide when they want children and for what reason they want children, which can include the various techniques used to bring about „saviour siblings‟. However, as rights are mutually interrelated and nterdependent, they cannot be viewed in isolation. Therefore, it must be asked: does a person‟s right to reproductive autonomy, as guaranteed by the Constitution, justify interference with an embryo? As an embryo is not recognised in South African law as a legal subject, it will be difficult to justify interference with this right on this basis. The right to consent to medical intervention only from age twelve was described as potentially problematic for „benefactor children‟ and „saviour siblings‟, as parents with seriously ill children may become so emotionally burdened, that they place the welfare of the sick child over that of the healthy child. Thus, it is possible that parents will consent to any and all procedures on the „benefactor child‟ or „saviour sibling‟, regardless of the implications to the health and suffering of the healthy child. Section 28(2) of the Constitution states that the child‟s best interests are of paramount importance but, it must be asked, whose best interests are more important when more than one child is involved? As this is a decision parents are incapable of making at that time, the decision should be made by a neutral, impartial and unemotional third party such as the Court, which can be assisted by the Family Advocate and an ombudsman, who are experts in assisting children and promoting their best interests. Presently, South African law does not expressly address „saviour siblings‟. However, with few changes to the National Health Act and other Regulations, this is an area which could be regulated in time. These changes could include finalising the draft regulations as well as providing a list of the medical and dental purposes for which blood and tissue can be removed and should make specific reference to the removal of tissue, blood or blood products to treat a sick sibling. It is also imperative that South Africa regulates these matters now, as „saviour siblings‟ are no longer simply a matter for the future. Furthermore, legislation needs to be amended and enacted to prevent the law from becoming out-dated and redundant, leaving „benefactor children‟ and „saviour siblings‟ vulnerable while law is being drafted. In that international law is silent on the matter, South Africa would be well advised to consider foreign law such as the United Kingdom, in developing its law. As the United Kingdom has developed a National Board, so too should South Africa, as this would assist in regulating „saviour siblings‟ by allowing members to review each proposed case of „saviour siblings‟. This is merely one recommendation of several which could facilitate a smooth, controlled regulation of a highly emotional topic. Children remain one of the most vulnerable groups in society and their rights are often susceptible to infringement or abuse. It is incumbent on the law to ensure that, wherever possible, these rights are protected, especially as science continues to advance and it becomes more difficult to determine what is morally correct.
- Full Text:
- Date Issued: 2011
The education sector as an essential service
- Authors: Adams, Anton John
- Date: 2011
- Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
- Full Text:
- Date Issued: 2011
- Authors: Adams, Anton John
- Date: 2011
- Subjects: Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10188 , http://hdl.handle.net/10948/1573 , Educational law and legislation -- South Africa , Teachers -- Legal status, laws, etc. -- South Africa , Right to education -- Law and legislation -- South Africa , Basic education -- South Africa , Human rights -- Study and teaching
- Description: Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.
- Full Text:
- Date Issued: 2011
The extension of employment rights to employees who work unlawfully
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
- Authors: Gauss, Tanja Claudine
- Date: 2011
- Subjects: Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10212 , http://hdl.handle.net/10948/1569 , Labor laws and legislation -- South Africa , Labor contract -- South Africa , Illegal aliens -- South Africa , Prostitutes -- Legal status, laws, etc
- Description: South Africa has over the years and particularly since the enactment of our new Constitution, attracted an increasing number of foreigners. One of the main problems associated with the large number of illegal immigrants in this country is that they are placing strain on South Africa‟s already scare resources such as housing and healthcare. A further problem is that these illegal immigrants are competing with South Africans for jobs which are already scarce, and thus aggravating the unemployment situation. Nevertheless, these illegal immigrants are being employed and by virtue of their circumstances are easily exploited and often the victims of cheap labour, corruption, eviction and assault. Given that these workers are illegal immigrants not in possession of the required work permits, their employment is prohibited by the Immigration Act 13 of 2002. They are thus illegal workers. Another category of illegal workers are those, predominantly women, who are employed in an industry which offers easy income with no contractual obligations – the prostitution industry. Despite the prohibition of prostitution by the Sexual Offences Act 23 of 1957, the prostitution industry throughout South Africa continues to exist. These workers are also particularly vulnerable and easily exploited and abused by their employers. Illegal immigrants and sex workers in South Africa have until recently been denied access to the protection of our labour legislation, by virtue of the illegality of their employment contracts. However two recent controversial decisions, that of the Labour Court in the Discovery Health case, and that of the Labour Appeal Court in the Kylie case, have changed this position.
- Full Text:
- Date Issued: 2011
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10210 , http://hdl.handle.net/10948/d1006368 , Emigrant remittances -- South Africa , Foreign exchange -- South Africa , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channeled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfill legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channeled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
The legal and regulatory aspects of international remittances within the SADC region
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
- Authors: Mbalekwa, Simbarashe
- Date: 2011
- Subjects: Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10280 , http://hdl.handle.net/10948/1373 , Emigrant remittances , Foreign exchange , Finance -- Government policy -- Developing countries , Transfer payments -- Developing countries
- Description: Migrant labourers who cross borders often have to send money back to their various countries of origin. These monetary transfers are known as remittances. To send these funds migrants often opt to rely on informal mechanisms as opposed to the remittance services of formal financial institutions such as banks. Informal remittance mechanisms raise a number of concerns such as those related to consumer protection. In contrast to formal channels informal channels are not based on any legally binding agreements. They are highly based on trust and do not offer any legally binding guarantee that the funds will be delivered or that the remitter will be reimbursed in the event of non-delivery. Aside from consumer protection concerns, informal remittances also raise security related concerns. These channels are not subject to the supervision of any regulatory authority and usually offer a high level of anonymity. They can act as an attractive mechanism for terrorists and criminal organisations to launder and mobilise their illicit funds. Taking into mind the concerns mentioned above, as well as others, it would be preferable for more remittances to be channelled through formal financial mechanisms. In conducting research on remittance transactions financial, as well as other institutions and organisations, have outlined legal and regulatory provisions in sending and recipient countries as being a factor that often hinders migrants from accessing formal financial services. This dissertation examines how the South African legal and regulatory framework affects the formalisation of remittances by migrant labourers, with a focus on the context of low-income migrants. The study identifies the Exchange control, immigration, anti-money laundering and anti-terrorism legislative provisions as being the most significant provisions that affect the formalisation of migrant remittances. So as to make an analysis and gather recommendations were possible, a comparison of the South African legal and regulatory provisions is made to those of Zambia and Zimbabwe. xiii The dissertation comes to the conclusion that South African legal and regulatory provisions hinder the formalisation of migrant remittances to a certain extent. They do so by collectively and individually restricting migrants who do not fulfil legislative requisites from accessing formal remittance channels. It is submitted that such migrants are inclined to rely on informal remittance mechanisms when the need to send money arises. Furthermore, South African law restricts competition within the remittance market by making it difficult for service providers to enter the market. The lack of an adequate competitive level fosters the prevalence of high remittance costs which can pose a significant barrier to low income migrants that wish to channel funds via formal means. Taking into mind the significance of formalising remittances as well as the objectives that the laws that hinder them seek to attain, which are equally significant, it is necessary for the regulatory authorities to investigate ways on how to possibly cater for both. It is submitted that if more remittances were to be channelled through official means the objectives sought to be attained by some of these legislative provisions would be attained more efficiently.
- Full Text:
- Date Issued: 2011
The legal framework pertaining to selected segments of the financial market
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
- Authors: Swart, Lynette
- Date: 2011
- Subjects: Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10216 , http://hdl.handle.net/10948/1425 , Financial institutions -- Law and legislation -- South Africa , Finance, Public -- Law and legislation -- South Africa
- Description: A sound financial system is the cornerstone of any country‘s economy. As South Africa has always been deemed to have a sound legal framework pertaining to the financial market, it has never faced the situation where it had to extensively review its entire legal framework. However, the recent global economic meltdown left policy makers, internationally, questioning the soundness of their financial systems and South Africa has been no exception. This dissertation provides an overview of the legal framework pertaining to selected segments of the financial market. This legal framework is then tested against certain selected issues highlighted by the global economic meltdown in order to establish whether it was and still is sufficiently robust to effectively negotiate these challenges. In order to deal with the selected segments of the legal framework pertaining to the financial market as comprehensively as possible, the selected segments for the purposes of this dissertation include the capital market, the money market and the derivative market. This dissertation also evaluates the impact of other recent domestic developments pertaining to securities settlement in South Africa. These developments include the recently promulgated Companies Act 71 of 2008 and the currently drafted Participant Failure Manual. This dissertation suggests that the Companies Act 71 of 2008 will have a significant impact on securities settlement. It is recommended that companies, holders of uncertificated securities and holders of beneficial interests in uncertificated securities familiarise themselves with their revised rights and obligations in order to, amongst other things, ensure compliance with this new legislative framework. This dissertation reveals that, even though our financial system has been found to be fundamentally sound and thus far have dealt with the global economic meltdown quite well, legislative reform to conform to international best practice is imperative. It is recommended that policy makers should strive to ensure that the South African legal framework pertaining to the financial market is sufficiently aligned with the principles, methodologies and recommendations as provided for by the international institutions providing best practice. The highlighted areas of legislative reform include the legal frameworks pertaining to credit rating agencies, investor due diligence, ix crisis management tools, compensation structures, accounting and valuations standards, issuer transparency, market transparency and risk management. This dissertation highlights that a significant amount of legislative amendments and endorsements by the relevant regulators and the Master of the Court are required for the successful integration of the Participant Failure Manual into the legal framework pertaining to the financial market. If, when and how the notion of Participant Failure will be accepted and regulated by the relevant regulators, without creating a conflict of interest, remains a question to be answered.
- Full Text:
- Date Issued: 2011
The obligation of non-discrimination under the General Agreement on Trade in Services (GATS) and the agreement on Trade-related aspects of Intellectual Property Rights (TRIPS): a developmental perspective
- Authors: Bidie, Simphiwe Sincere
- Date: 2011
- Subjects: Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11113 , http://hdl.handle.net/10353/338 , Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Description: The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
- Full Text:
- Date Issued: 2011
- Authors: Bidie, Simphiwe Sincere
- Date: 2011
- Subjects: Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11113 , http://hdl.handle.net/10353/338 , Food -- Relief -- Law -- Legislation , Food supply -- Law and legislation , Foreign trade regulation
- Description: The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
- Full Text:
- Date Issued: 2011
The prevalence and consequences of workplace bullying in South Africa
- Authors: Momberg, Markus Albertus
- Date: 2011
- Subjects: Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10211 , http://hdl.handle.net/10948/1572 , Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Description: A study is made of the ever-growing worldwide social pandemic of workplace bullying. We define workplace bullying in terms of its characteristics and distinguish it from unfair discrimination in the form of harassment. A survey is presented of its occurrence worldwide and how it manifests as an organisational conflict, both as hierarchical and horizontal abuse. This is analysed in terms of a social science perspective. We consider grievance reporting as an indication of trends in workplace bullying and discuss the limitations of such reporting. We review the consequent effects of such limitations on the health of workers and workplace efficiency and note the shortcomings of existing labour law in dealing with this inadequacy. Our findings are summarised, with recommendations for resolving this conflict situation.
- Full Text:
- Date Issued: 2011
- Authors: Momberg, Markus Albertus
- Date: 2011
- Subjects: Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10211 , http://hdl.handle.net/10948/1572 , Bullying in the workplace -- South Africa -- Prevention , Harrasment -- South Africa , Organizational behavior -- South Africa , Interpersonal relations -- South Africa , Labour laws and legislation -- South Africa
- Description: A study is made of the ever-growing worldwide social pandemic of workplace bullying. We define workplace bullying in terms of its characteristics and distinguish it from unfair discrimination in the form of harassment. A survey is presented of its occurrence worldwide and how it manifests as an organisational conflict, both as hierarchical and horizontal abuse. This is analysed in terms of a social science perspective. We consider grievance reporting as an indication of trends in workplace bullying and discuss the limitations of such reporting. We review the consequent effects of such limitations on the health of workers and workplace efficiency and note the shortcomings of existing labour law in dealing with this inadequacy. Our findings are summarised, with recommendations for resolving this conflict situation.
- Full Text:
- Date Issued: 2011
Vicarious libality for sexual harassment at work
- Authors: Muzuva, Arthurnatious
- Date: 2011
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10233 , http://hdl.handle.net/10948/d1011386 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
- Full Text:
- Date Issued: 2011
- Authors: Muzuva, Arthurnatious
- Date: 2011
- Subjects: Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10233 , http://hdl.handle.net/10948/d1011386 , Sexual harassment -- Law and legislation -- South Africa , Sex discrimination in employment -- Law and legislation -- South Africa
- Description: Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
- Full Text:
- Date Issued: 2011
Accountability of child soldiers in conflict situations in Sub Saharan Africa
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010
- Authors: Fritzen, Johannes
- Date: 2010
- Subjects: Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10277 , http://hdl.handle.net/10948/1561 , Child soldiers -- Africa , Children and war -- Africa, Sub-Saharan , Children -- Africa, Sub-Saharan , Conflict management -- Africa, Sub-Saharan , Children's rights -- Africa, Sub-Saharan
- Description: Throughout the world, but especially in the African continent, international, cross-border and national conflicts are ongoing. In the majority of these conflicts child soldiers are involved in various ways. Judicial problems concerning the prosecution of commanders and leaders of armed groups, irrespective of governmental or not are being solved. Thus, underlying concern is left to the issue of accountability of child soldiers. International, Regional and National protection measures provide for certain judicial standards dealing with children under the age of eighteen. In order to fully understand the difficulties arising from the existence of universal binding measurement dealing with the accountability of child soldiers, one has to be aware of the international, regional and national legislative frameworks. In Sub Saharan Africa, especially in Rwanda, Uganda and the Democratic Republic of Congo, governments face various difficulties, such as the implantation process of international protection measures and ongoing conflicts, making it very difficult to examine the status of accountability measures for child soldiers. States have different minimum ages for accountability for child soldiers. Only a process of international co-operation between governments and non state actors can attempt to deal with the accountability of child soldiers. Not only deterrent, but rather restitution approaches and reintegration programmes should be followed in order to bring justice and achieve results in peace processes.
- Full Text:
- Date Issued: 2010