The application of the doctrine of common purpose to the joint possession of firearms
- Authors: Mnono, Zimbini
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51197 , vital:43225
- Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The application of the prevention and combating of corrupt activities act
- Authors: Landman, Johan Abraham
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Corrupt practices--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51201 , vital:43223
- Description: The study will address the application of the Prevention and Combatting of Corrupt Activities Act (PCCAA) and the various offences that is created by PCCAA and how the coutls apply PCCAA in corruption cases. This study will compare the crimes that was created under the repealed Corruption Act with the crimes created under PCCAA, lt will further show how the courls interpreted the application of PCCAA. The infamous case of former police commissioner, Jacki Selebi will be discussed and how the Supreme coutl of Appeal applied section 4 of PCCAA. lt will furlher explore why section 5 of PCCAA needs amendment to be able to prosecute foreign public officials under PCCAA. The PCCAA Amendment Bill is currently before parliament to amend section 5 of PCCAA. This study will further explore how corruption is dealt considering hospitality and gifts. This must be the most unnoticed form of bribery that occurs which PCCAA does not specifically clearly addresses. This will shorlly be compared to the German Penal Code. All legislation has strengths and weaknesses, including PCCAA. This study will explore those strengths and weaknesses and how they can be solved. lt will explore loopholes within PCCAA and the strategy of 'unbundling' corruption and its effects. lt has been stressed by the courts that corruption is a very serious crime and therefore the reporting thereof is impoftant. This study will discuss the reporling of corruption in terms of section 34 of PCCAA. This study will fufther show through South African case law that the courls are too lenient when sentencing individuals guilty of corruption and that the minimum sentence needs to be the starting point for sentencing offenders. The courts should not have discretion to deviate from this minimum sentence given how serious the courls express corruption to be and the devastating effects it has. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The combating of gang activities in terms of the Prevention of Organised Crime Act 121 of 1998
- Authors: Lande,Sonwabise
- Date: 2021-04
- Subjects: Crime Prevention- South Africa , Law-- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55175 , vital:49580
- Description: This treatise discuses, the effectiveness of the Prevention of Organised Crime Act (POCA), specifically, Chapter Four of the Act. POCA was enacted for the purposes of tackling, inter alia, the threat posed by money laundering, racketeering and criminal gang activities. Moreover, POCA was enacted to supplement the common law, specifically the doctrines of common purpose, conspiracy, public violence as well as incitement. In this respect, the legislative framework in line with POCA- aimed at addressing money laundering and racketeering have contributed significantly in addressing such crimes. However, the same cannot be said about its effect on dealing with criminal gang activities. The criticisms which have been raised for the increase of criminal gang activities are that the sentences provided for in Chapter Four of POCA are viewed as inadequate in terms of deterrence because they are too lenient. The sentences do not hold gang leaders accountable but rather focus on foot soldiers. Likewise, POCA is similar to and does not expand the common law. This treatise aims to demystify the issues relating to criminal gang activities in South Africa. It investigates the extent to which Chapter Four of POCA adds significant value to the common law in respect of criminalising criminal gang related activities. It concludes and make recommendations on how criminal gang activities can be tackled while upholding South Africa’s constitutional values.bstract text. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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- Date Issued: 2021-04
The concurrent jurisdiction of the high court and labour court
- Authors: Beyleveld, Dominique
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Labor laws and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51191 , vital:43218
- Description: The words “concurrent jurisdiction” essentially means that there is more than one court which has the power to hear a matter and therefore, a party may choose which forum to approach.1 The High Court (hereinafter referred to as “HC”) may exercise jurisdiction, together with the Labour Court (hereinafter referred to as “LC”), in enforcing purely contractual and other common law claims as well as for breach of fundamental rights to which the Labour Relations Act (LRA)2 (or other labour statutes) do not give effect to.3 However, this is not without limitations. The HC and the LC have concurrent jurisdiction over claims relating to the lawfulness of dismissal or other conduct by the parties, whereas all claims based on fairness falls within the exclusive jurisdiction of the LC.4 The practical implication of the approach taken by the Constitutional Court (hereinafter referred to as “CC”)5 is that jurisdiction may, to a certain extent,6 be based on the pleadings, and a litigant may in fact have simultaneous claims arising from the same circumstances.7 However, where the basis of the action and the relief sought is clearly identifiable as being part of the machinery of the Labour Relations Act (hereinafter referred to as the “LRA”) or other labour legislation, then the HC will not have jurisdiction and it is up to the LC to remedy the wrong and give effect to the primary objects of the LRA , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The dismissal of employees for a group or team misconduct
- Authors: Mnisi, Daphney Sibongile
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51184 , vital:43226
- Description: South African labour law is founded on the fundamental constitutional right of fair “labour practices”. This fundamental right is afforded to both the employer and workers. This means that in the employment relationship, there are two competing rights involved which necessitate the need to strike a balance when each party’s rights are exercised. Therefore, this right is not absolute, and it is subject to limitations as per the provisions of section 36 of the Constitution. The Labour Relations Act, amongst other labour law resources considered in this research, give effect to those competing rights and seek to strike the necessary balance by establishing guidelines to protect the individual employee against unfair dismissals, amongst other things. It requires that the dismissal of an employee be fair. This requirement is met where two elements are fulfilled: (1) substantive fairness and (2) procedural fairness. The purpose of this study is to focus on “misconduct” as a valid reason for dismissal, as well as “group or team misconduct” which is included in the notion and ambit of “misconduct”. This type of misconduct involves a group or team who the employer has identified as having committed a misconduct, but the employer, due to different reasons explored in this research, is unable to identify the specific individual employees directly involved in the primary misconduct it wishes to prosecute. Therefore, the employer formulates a disciplinary charge of “group or team misconduct” to discipline the entire group or team. This group or team may form part of the entire workforce or a team within a department of the employer’s business. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The impact of the minimum wage in South Africa
- Authors: Brown, Kenrick
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51202 , vital:43224
- Description: On the 20th anniversary of freedom and democracy in South Africa, the government announced its intention to introduce a national minimum wage. The announcement made it clear that the intention was not to introduce a residual wage floor, but to rather completely transform the country’s inordinately unequal wage structure. “Change will not come about without some far-reaching interventions. … As government, we will, during this term, investigate the possibility of a national minimum wage as one of the key mechanisms to reduce income inequality.”1 Minimum wages are geared towards establishing wage floors, which are the bare minimum that employees are allowed to pay employees. The International Labour Organisation (ILO) describes minimum wages as remuneration that covers the basic needs of workers and their families, taking into account relevant economic factors.2 National minimum wages of course set these minimum wage floors at a national, economy-wide level. In South Africa, the stated purpose of a national minimum wage has the multi-purpose function of setting a national wage floor in order to reduce poverty and inequality in order to transform the inherently unequal wage structure radically that still exists in South Africa post-apartheid. Before 1st of January 2019 when the national minimum wage became effective, South Africa had minimum wages, but this was prescribed per sector of the economy. Particularly in unorganised sectors a nationally set minimum wage increased the scope and ease of enforcement for minimum wages in comparison to sectoral wage determinations. In short, it covers all employees in all industries, whereas sectoral determinations did not. Furthermore, a national minimum wage would be far more easily set to take into consideration broader governmental policy considerations in comparison to diverse, multisector wage determinations that only target the employees and economic considerations of their sector. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
The protection of children during assert forfeiture procedure
- Authors: Khunou, Lesego
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Children's rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51207 , vital:43221
- Description: As South Africa was transitioning into a new democracy there was an upsurge of organised crimes in the country. In the pursuit of tackling the rise of organised crimes in South Africa which would destabilise the country's economy, the Prevention of Organised Crimes Act was introduced however the act was not only for organised crime, it was for crimes such as money laundering, racketeering and gang activities amongst other crimes. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The regulation of renewable ocean energy
- Authors: Kekana, Lerato Caroline
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Renewable energy sources -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51211 , vital:43217
- Description: Energy is one of the vital natural resources that contribute towards an improvement in social and economic development. Environmental issues such as climate change have resulted in the exploitation of renewable energy gaining momentum. Renewable ocean energy is one of the renewable sources that have the potential to assist South Africa to achieve its energy policy goals, which include economic development and the management of energy-related environmental and health impacts. The exploitation and exploration of renewable ocean energy in South Africa raise legal concerns. These concerns are the lack of appropriate legal and regulatory frameworks and the possible conflicts among users in the marine environment that may occur as a result of the exploitation and exploration of renewable ocean energy. This dissertation, therefore, addresses these concerns by providing a critical assessment of the regulation of renewable ocean energy in South Africa. Firstly, it provides an introduction and legal background of renewable ocean energy. It proceeds by critically assessing the international requirements with which South Africa needs to comply regarding renewable ocean energy. Following that, the dissertation provides an analysis of the environment and energy legislation and the extent to which they regulate renewable ocean energy. Lastly, taking into account other existing and future activities in the marine environment, there is a discussion of the marine spatial planning (MSP) and other regulatory measures in so far as they relate to the resolution of the conflict in the context of renewable ocean energy. The conclusion is that the existing legislation does not appropriately regulate renewable ocean energy. As a result, the dissertation proposes how the existing legislation may adequately include renewable ocean energy. Furthermore, it makes recommendations. , Thesis (LLM) -- Faculty of Law, Public Law, 2021
- Full Text: false
- Date Issued: 2021-04
The rights of children in youth care centres
- Authors: Ngodwana, Gugulethu
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Juvenile delinquents
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51193 , vital:43230
- Description: Poverty is prevalent in the Eastern Cape Province. As a result of poverty and other related factors, there is an increase on percentage of crime. There is a number of case laws where children have been found guilty of committing very serious criminal offences in the Eastern Cape. They are contributing high percentage in crime. In the past, before the dawn of the new constitutional dispensation, children in conflict with the law were not treated any different to adults who were in conflict with the law. There was no separate legislation that was child specific. , Thesis (LLM) -- Faculty of Laws, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The substantive fairness of dismissal for operational requirements in the context of collective bargaining
- Authors: Mtshemla, Ntokozo
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51195 , vital:43222
- Description: An employer may wish to change terms and conditions of employment in order to respond to the operational needs of a business. The definition of operational requirements is not limited to initiatives aimed at ensuring the survival of a business but include measures intended to improve its performance. Changes to terms and conditions of employment ordinarily locate themselves within the realm of interest disputes which are mainly resolved through the process of collective bargaining coupled with power play. This means that an employer may not dismiss employees within the context of collective bargaining as a way of compelling compliance with a demand in relation to matters of mutual interest. Section187(1)(c) of the LRA renders any dismissal automatically unfair if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest. The question that arises relates to the interpretation of this section and the impact thereof on the right of the employer to retrench as envisaged in section 188(1)(a)(ii) of the LRA. This reveals the intersection between collective bargaining and dismissals for operational requirements. In other words, changes to terms and conditions of employment equally influence the performance of the business thereby also fall within the definition of operational requirements. The question therefore is when do employers’ economic needs justify a dismissal of employees who rejects changes to terms and conditions of employment? Secondly, whether or not the relevant provisions, and the whole scheme of the LRA, require retrenchments to be the measure of last resort? These issues shall be explored in this treatise with reference to the relevant provisions of the LRA and relevant case law. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Workplace forums and the enhancement of collective bargaining
- Authors: Silo, Zama
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Collective bargaining--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51189 , vital:43229
- Description: Historically, workers in South Africa, black and Africans in particular, fought against an oppressive regime and, in the absence of political rights, strikes were mostly violent. Labour legislation was based on racial categorisation and discrimination. There was parallel labour legislation for blacks, and a different one for whites. The legislation for blacks was called the Black Labour Relations Act 48 of 19531 , for whites it was called the Industrial Conciliation Act, it was later renamed the Labour Relations Act 28 of 19562 . Trade unions were racially divided, and black workers mostly were denied the right of joining trade unions. The unions that admitted blacks as members could not become parties to industrial councils. Before 1979, black workers in South Africa did not have access to the collective bargaining system. After that year, the guidelines proposed by the Wiehahn, Commission brought about certain changes. Attempts were made to establish independent labour organisations for black workers, but both the state and employers applied various strategies to undermine these organisations. One of these strategies was the Native Labour Settlement Disputes Act of 1953, which restricted the representation of black workers on worker committees in the workplace and prohibited them from striking. Black workers therefore never utilised these statutory works committees and by 1971, there were only 18 statutory works committees in the country. The Department of Labour indicated that there was a preference for non-statutory works committees because there were no restrictions in respect of their composition, and they provided a structure by means of which workers could be represented.3 Militant action by black labour in the early 1970s led to the promulgation of the Black Labour Relations Regulation Act of 1973.4 This Act was to extend the existing works committee system. Liaison and coordinating committees were set up to restrain activism among the workers and establish an alternative form for trade unions of labour management communication. Where statutory works committees had only consisted of employees, employers could now half the members of the new liaison committees and their chairman. The growth of these committees led to black workers building up a base for a future independent organisation. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Reinforcing the protection of stakeholders’ interests under the South African takeover regulation regime: a comparative assessment from a complementary regulatory perspective.
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
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- Date Issued: 2021-02
A trade union’s right to strike to acquire organisational rights
- Authors: Bebula, Vitamin Luxolo
- Date: 2020
- Subjects: Labor unions -- Law and legislation -- South Africa , Industrial relations -- South Africa South Africa -- Labour Relations Act -- 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/48949 , vital:41565
- Description: Chapter II of the Labour Relations Act (LRA) entrenches the right to freedom of association. Section 1(c) of the LRA outlines the purpose of this Act as to provide a collective bargaining framework to determine wages, terms and conditions of employment, and matters of mutual interest by the employees and their unions and employers and employer’s organisation. Under this chapter, section (1)3 of the LRA confers the right to an employee to join a trade union, form or participate in forming a trade union or federation of trade unions. The member of a trade union has a right to participate in the lawful activities of his or her union. Regarding freedom of association, the new government took a commitment to uphold international labour standards and promised to submit to International Labour Organisation (ILO) Conventions on freedom of association and collective bargaining to parliament for ratification. In 1992 some provision of the previous Labour Relations Act was declared by ILO’s FFCC as incompatible with the freedom of association. The convention affords the workers and employers the right to establish and join organisations and federations of their own choice. The ILO also protects the right to collective bargaining. The convention also confers the right to provision of facilities to worker’s representatives for prompt and effective conduction of their activities.
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- Date Issued: 2020
Application of section 197 of the Labour Relations Act in an insourcing context
- Authors: Mahlati, Nomphelo Miliswa
- Date: 2020
- Subjects: Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47392 , vital:39974
- Description: The last two decades have been characterised by a phenomenal rise in the outsourcing of services to external service providers. The driver of this trend has been largely economic, since outsourcing offers more competitive price points for the same service at a comparable service level. Beyond the cost saving objective, the rationale for outsourcing has been to drive core strategy. However, with the economic slowdown, declining consumption and production are forcing entrepreneurs to change their way of thinking about the management of companies. Notably, in recent years there has been a small but a growing reversal of this trend where companies that have previously outsourced functions are being brought back in-house. One of the major concerns surrounding these changes of business strategies is the extent to which the employee rights are safeguarded.
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- Date Issued: 2020
Audio-Visual and Cyber Evidence in the Context of Criminal Law
- Authors: Madzika, Koshesayi
- Date: 2020
- Subjects: Electronic evidence -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47380 , vital:39967
- Description: In the past decade technology has advanced significantly and at a very rapid pace. This advancement and rapid growth of technology has affected many aspects of life, including legal systems. An area of law particularly affected by the rapid changes in technology is the law of electronic evidence, especially as far as criminal matters are concerned. This is largely due to an increase in crimes committed over the internet. The growth of technology, such as cyber communications and mass media, has made audio visual and electronic messages important forms of evidence. The purpose of this research is to show the complications that technology has brought about as far as electronic evidence in the context of criminal law is concerned. It is acknowledged that South Africa has an existing legislative framework regulating electronic evidence, but it is submitted that there are lacunae in such legislation. The aim of the dissertation is therefore to expose the lack of adequate regulation in South Africa in dealing with electronic evidence. A further aim of the research is to seek to provide solutions to problems related to the regulation of electronic evidence. It is important to determine the current laws regulating electronic evidence in order to expose the lacunae within those laws. An outline of the current legal framework regulating electronic evidence shall be given. This consists of the historical background on the admissibility of electronic evidence; the constitutional basis for admitting such evidence and legal principles governing electronic evidence. Inadequate regulation of electronic evidence is a serious problem, as technology has overtaken some areas of the physical world. The criminal justice system has also been affected especially in the admissibility of electronic evidence. The problems regarding electronic evidence in criminal law matters shall be fully assessed in order to reflect how the criminal justice system has been affected and the consequences of inadequate regulation. In seeking solutions to the problems of inadequate regulation of electronic evidence, reliance is placed on recommendations by the South African Law Reform Commission; international and foreign law. A conclusion is drawn from the dissertation that, whilst technology has been rapidly advancing, the South African law regulating electronic evidence has remained largely unchanged, rendering it incapable of sufficiently regulating matters in which electronic evidence plays a key role. The demand for adequate legislation on electronic evidence is therefore apparent in this regard.
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- Date Issued: 2020
Bail applications in Nigeria and South Africa
- Authors: Babalola, Abdulateef Taiwo
- Date: 2020
- Subjects: Bail -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47325 , vital:39847
- Description: Between the point of arrest and conviction, an accused person has a right to be released on bail based on his or her Constitutional right to liberty as well as the right to be presumed innocent. To grant bail to an accused person serves as a form of contract of insurance or a guarantee that if the accused person is released pending the determination of the case against him, he will not frustrate the course of justice and will appear at a later date to face trial. The essence of bail is to allow the accused person enjoy his right to liberty pending the determination of the criminal charge if the interest of justice will permit for his or her release. This study aims at comparing bail proceedings in both the Nigerian and South African criminal justice systems. The constitutions of both jurisdictions make provision for bail, as well as the Administration of Criminal Justice Act applicable in Nigeria and the Criminal Procedure Act which is applicable in South Africa. By comparing both jurisdictions, the similarities and differences that exist between both systems will become evident, which makes them unique and distinct of each other. During the course of this study, it will be discovered that the Nigerian bail procedure do not meet up to international standards in protecting the right to personal liberty of accused persons. It is believed that the recommendations that will be suggested in this study will improve the Nigerian bail procedure and make it more effective and efficient.
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- Date Issued: 2020
Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
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- Date Issued: 2020
Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
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- Date Issued: 2020
Dismissal for racist remarks and racism
- Authors: Du Plessis, Armand
- Date: 2020
- Subjects: Employees -- Dismissal of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47359 , vital:39850
- Description: Racism has always been a hard and tough battle fought by all South Africans. Since the independence of the Republic of South Africa has racism in the workplace become a very popular tendency. Ever since has there been a number of legislation which has been incorporated to specifically address this behaviour, but remains the question whether this legislation has achieved what its drafters aimed to have achieved. There will also be a comparison to the implemented legislations of Australia and England aimed at addressing and prohibiting racism in the workplace. Throughout this study, attention will be brought to specific words which have been used in the past by particular employees towards their fellow employees and the consequences thereof. Recently, the Supreme Court of Appeal and our Constitutional Court had to relook at the definition of “hate speech” in terms of certain legislation within South African and came to the conclusion that this definition must be amended to include, and also exclude, particular words and phrases in order for the existing definition thereof to be more precise and clear. The main aim of this study is to determine whether the dismissal of an employee, based on racism in the workplace, or for the utter of racism remarks in the workplace, can warrant the dismissal of that specific employee, and should dismissal not be the appropriate sanction, to determine what sanction would be appropriate in such circumstances. The writer hereof, has aspired to achieve his goal throughout this study that racism in the workplace should not be tolerated, and that employees who make themselves guilty thereof, should be punished in a serious manner.
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- Date Issued: 2020
Disputes about the interpretation, application and breach of collective agreements
- Authors: Roelofse, Cornelius Johannes
- Date: 2020
- Subjects: Collective labor agreements -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47414 , vital:39988
- Description: Section 24 of the Labour Relations Act 66 of 1995 (the Act) regulates disputes about the interpretation and application of collective agreements. On the face of it, there is nothing particularly complicated about section 24 of the Act. This section provides that, if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the CCMA; firstly, if the agreement itself does not provide for its resolution by conciliation or arbitration by another body; secondly, if the dispute resolution procedure is inoperative and finally, if a party is frustrating the resolution of the dispute under the dispute resolution provisions of the collective agreement. Most bargaining council main agreements provide for the resolution of disputes concerning the interpretation or application of their collective agreements by conciliation or, if that fails, by arbitration. But what exactly is the scope of these provisions, and what are the powers of arbitrators when entertaining such matters? These questions are significant. If the scope of section 24 of the Act is as limitless as it seems, and if arbitrators acting in terms of that section have full powers not only to interpret and apply the provisions of collective agreements, but also to order parties not only to comply with them, and to make restitution to the other party if they haven’t, then statutory arbitrators may make orders equivalent to those that courts may make in actions for breaches of contract and, potentially, arbitrate matters over which they would not otherwise have jurisdiction. This could complicate affairs if the collective agreement being interpreted and applied is incorporated into the employment contracts of the employees concerned. The Act does not expressly set out the powers of arbitrators dealing with disputes under section 24 of the Act. For a long time after the promulgation of the Act, statutory arbitrators were generally of the view that section 24 meant what it apparently says, that it empowers arbitrators both to declare the true meaning of collective agreements to apply and to enforce them, also to order defaulting employers to compensate employees for the financial loss they have suffered in consequence of the breach. However, this understanding of what section 24 of the Act entails was thrown into confusion by two judgments of the Labour Appeal Court (LAC), Johannesburg City Parks v Mphahlani NO1 (Johannesburg City Parks) and Minister of Safety and Security v SSSBC (SSSBC). 2 In this treatise a discussion and analysis will follow of how these two judgments influenced future case law about the meaning and scope of section 24 of the Act and the uncertainties it created.
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- Date Issued: 2020