Dumping, antidumping and the future prospects for fair international trade
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
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- Date Issued: 2008
The auditor's duty of reasonable care and skill and the expectation to detect fraud
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
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- Date Issued: 2008
The regulation of insider trading in South Africa: a roadmap for effective, competitive and adequate regulatory statutory framework
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
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- Date Issued: 2008
The role of the judiciary in protecting the right to freedom of expression in difficult political environments: a case study of Zimbabwe
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
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- Date Issued: 2008
Critical analysis of the impact of the common law on African indigenous law of inheritance a case study of post colonial legislation in Zimbabwe
- Authors: Gwarinda, Tafira Albert
- Date: 2009
- Subjects: Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11110 , http://hdl.handle.net/10353/161 , Inheritance and succession -- Zimbabwe -- Law and legislation , Tribal government -- Zimbabwe , Customary law -- Zimbabwe , Zimbabwe -- Law and legislation
- Description: The study looks at the main features of African indigenous law of succession and inheritance in Zimbabwe. It draws a distinction between the forms of inheritance practised between the two major ethnic groups, the Shona and the Ndebele. Whilst the research was mainly aimed at these two groups an investigation into inheritance practice by the South African Zulu and Xhosa counterparts was also made. An investigation into the impact of western influence on succession and inheritance was made taking a look at colonial legislation and case law, the general deduction being that it was a vehicle for attaching customary law to a western type law. After independence there was the issue of the impact of constitutionalism and international human rights law on succession in post colonial Zimbabwe. These were tools for change by bringing in notions of equality between men and women, issues that were highlighted in the cornerstone case of Magaya v Magaya, which was in turn discussed in the light of the Mthemu v Letsela and Bhe trilogy of cases in South Africa. In the final chapter there is a discussion of possibilities of reform and the future of customary law in Zimbabwe the highlight here being conducting proper legal research to ascertain the true purpose of custom.
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- Date Issued: 2009
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
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- 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.
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- Date Issued: 2011
Legal status and protection of animals in South Africa
- Authors: Hartwig, Wendy
- Date: 2012
- Subjects: Human-animal relationships -- Law and legislation -- South Africa , Animals -- Welfare -- Laws -- Humans -- Relationships - -South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11118 , http://hdl.handle.net/10353/515 , Human-animal relationships -- Law and legislation -- South Africa , Animals -- Welfare -- Laws -- Humans -- Relationships - -South Africa
- Description: The animal welfare legislation that is discussed in this Dissertation is just a sample of the available legislation from the chosen foreign jurisdictions and South Africa. The chosen foreign jurisdictions were chosen as a lens to gain a needed perspective on South African animal welfare legislation. The legislation chosen for discussion falls within particular categories that are discussed fully in the later chapters.i Despite the fact that the animal rights and animal welfare movements are recorded to date back as far as 500B.C, the majority of jurisdictions throughout the world still consider animals to be property that can be bought, traded, hunted and after they are killed, their remains kept as trophies or souvenirs. Within these jurisdictions (which includes South Africa and the other four chosen foreign jurisdictions – Kenya, India, Switzerland and the United States of America) there is a demonstrated lack of proper enforcement of the animal welfare/animal anti-cruelty legislation, regulations and industry rules, which is made worse by the actions of uncaring, abusive and/or ignorant people. South Africa is no better or worse to the four chosen jurisdictions in that it has similar anti-cruelty/animal welfare legislation. The lack of proper enforcement of this animal welfare legislation in South Africa should be of great concern as many studies have indicated that there is a link between animal abuse/cruelty and ‘human’ abuse. The same studies also indicate that animal abusers are at a greater risk of becoming violent criminals or of committing a violent crime. For example, the Federal Bureau of Investigation has noted that most serial killers in the USA had a history of torturing, abusing and killing animals before they moved on to torturing, abusing and/or killing humans in their adult life. Needed changes to the animal welfare legislation and how people view animals should be made in South Africa to ensure that welfare of animals is protected. For example, the Government could educate people about animal welfare in order to overcome any ignorance that may be the cause of animal pain and abuse, as well as strengthening existing animal welfare legislation. The eradication of ignorance, as well as a necessary change in the current animal welfare legislation, will help to create a real change in how people view and treat i Chapter 5 and 6. [iii] animals. People will come to realise that animals exist in their own right and that they were not created to serve or to be exploited by man.
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- Date Issued: 2012
The efficacy of the United Nations in conflict resolution: a study of the response of the security council to the Darfur conflict in the Sudan
- Authors: Fabrice, Tambe Endoh
- Date: 2012
- Subjects: Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11119 , http://hdl.handle.net/10353/d1006233 , Humanitarian law -- Sudan -- Darfur , Humanitarian assistance -- Sudan -- Darfur , Genocide -- Sudan -- Darfur
- Description: Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
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- Date Issued: 2012
Human rights implications of the compulsory HIV/AIDS testing policy: a critical appraisal of the law and practice in South Africa, Uganda and Canada
- Authors: Chiringa, Kudakwashe E M
- Date: 2013
- Subjects: HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11106 , http://hdl.handle.net/10353/d1017298 , HIV infections -- Prevention , HIV-positive persons -- Civil rights , AIDS (Disease) -- Patients -- Legal status, laws, etc. , AIDS (Disease) -- Law and legislation
- Description: HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.
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- Date Issued: 2013
Legislating business rescue in South Africa: a critical evaluation
- Authors: Darko-Mamphey, Dorothy
- Date: 2014
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11121 , http://hdl.handle.net/10353/d1015244
- Description: Social, political and economic changes in post-apartheid South Africa have generated the need for a major reform of the legislative regime governing companies in order to ensure that that regime is capable of addressing the challenges faced in domestic and international circles, and to also meet the demands of globalisation. 1 These developments include the change in culture from company liquidations to commercial renewal which caused the Department of Trade and Industry (DTI) to embark on drastic reforms of South Africa’s business rescue mechanism as part of the broader company law reform project. 2 The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution.
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- Date Issued: 2014
The enforcement of the right of access to adequate housing in South Africa: a lesson for Lesotho
- Authors: Pule, Sesinyi Edwin
- Date: 2014
- Subjects: Housing -- Law and legislation -- South Africa , Housing -- Law and legislation -- Lesotho
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11122 , http://hdl.handle.net/10353/d1016249 , Housing -- Law and legislation -- South Africa , Housing -- Law and legislation -- Lesotho
- Description: South Africa is one of the countries with a very horrifying history. However, in the dawn of democratic governance, a worldly admirable constitution was brought into picture. The 1993 and 1996 South African Constitutions entrenched an elaborate Bill of Rights with provisions empowering courts to grant “appropriate relief and to make “just and equitable” orders. Happily, the Bill of Rights included justiciable and enforceable socio-economic rights. Amongst them, there is a right of access to adequate housing, for which this work is about. South Africa is viewed as a country with developed jurisprudence in the enforcement of socio-economic rights, hence it has been used as a lesson for Lesotho. Lesotho is still drowning in deep blue seas on enforcement of socio-economic rights either because the constitution itself hinders the progress thereon or because the parliament is unwilling to commit execute to the obligations found in the socio-economic rights filed. This work scrutinizes many jurisdictions and legal systems with a view to draw lively examples that may be followed by Lesotho courts towards enforcing housing rights. Indian and South African jurisprudences epitomize this notion.
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- Date Issued: 2014
An analysis of "self-determination" in international law : the case of South Sudan
- Authors: Zimuto, Prince Charles
- Date: 2015
- Subjects: Self-determination, National Decolonization -- South Sudan Sudan -- Politics and government
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5697 , vital:29364
- Description: This research intends to investigate the scope and applicability of the concept of ‘self-determination’ outside the context of decolonisation using South Sudan as a case study. Demands for the exercise of the right to self-determination are widespread. These are vehemently resisted by states who view the concept of ‘self-determination’ as a potential source of territorial disintegration. International instruments which provide for the right to self-determination also discourage the impairment of the territorial integrity of states in the name of self-determination. The problem faced in international law is therefore how to balance the right to self-determination with the principle of territorial integrity. The study reveals that the general understanding is that outside the context of decolonisation the right to self-determination may be exercised within the territorial boundaries of a state without compromising the territorial integrity of a state. The internal exercise of the right to self-determination entails human rights protection, participation in the political affairs of the state and autonomy arrangements. This general understanding is however problematic where a state systemically violates the rights of its people and denies them political participation in the affairs of the state. The people of South Sudan found themselves in such a situation from the time when Sudan gained independence from British colonial rule. Despite a number of negotiations with the government of Sudan, the people of South Sudan continued to be marginalised and their rights violated with impunity. They then demanded to exercise their right to self-determination externally and eventually they seceded from Sudan through the framework created by the Comprehensive Peace Agreement of 2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial self-determination approach to the understanding of post-colonial self-determination. In terms of this approach when people are denied the right to exercise their right to self-determination internally, or their rights are deliberately and systemically violated, they may exercise their right to self-determination externally and secede.
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- Date Issued: 2015
Expanding access to essential medicines through the right to health: a case study of South Africa
- Authors: Motamakore, Shelton Tapiwa
- Date: 2015
- Subjects: Right to health -- South Africa Medical care -- Law and legislation -- South Africa AIDS (Disease) -- Government policy -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5620 , vital:29352
- Description: Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
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- Date Issued: 2015
The regulation of agricultural subsidies in the World Trade Organization framework : a developing country perspective
- Authors: Chigavazira, Farai
- Date: 2015
- Subjects: Foreign trade regulation -- Developing countries Agricultural laws and legislation -- Developing countries Tariff on farm produce -- Developing countries
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/1874 , vital:27569
- Description: The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.
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- Date Issued: 2015
Accountability and transparency deficits and the problem of non-tariff barriers in the Southern African Development Community : a critical assessment of intra-regional trade promotion initiatives
- Authors: Muleza, Charles
- Date: 2016
- Subjects: Southern African Development Community Non-tariff trade barriers
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/18812 , vital:42735
- Description: The Southern African Development Community (SADC) was established with a view to pursuing economic growth and development in the region. However, even after the establishment of the Free Trade Area (FTA), the presence of significant non-tariff barriers (NTBs) has contributed to the lack of progress in achieving these objectives. Therefore, the premise of this study is that the successful realisation of the economic goals of SADC can only be accomplished on the basis of a legal and institutional framework that promotes accountability and transparency at the national and regional level. It is undeniable that this approach is gaining prominence worldwide as more attention is directed towards the removal of NTBs. For the purposes of advancing trade liberalisation within the context of a more transparent and predictable trade regime, this study analyses the strengths and weaknesses of the SADC legal and institutional framework. To that end, it addresses pertinent issues such as, inter alia, the effectiveness of supranational or intergovernmental approaches in regional institutions, the appropriate status of community law within Member States’ jurisdictions and the role of state sovereignty in regional integration. To achieve a clearer understanding of these issues, the World Trade Organisation (WTO) is assessed to obtain insights on the multilateral standards that it sets for the accountability and transparency measures of regional trade agreements (RTAs). The comparative analysis of the European Union (EU), which is viewed as the gold standard for regional integration, also assists in enabling this study to draw lessons for SADC, particularly in the determination of recommendations for legal and institutional reform.
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- Date Issued: 2016
Does the directors' fiduciary duty to act in the best interests of the company undermine other stakeholders' interests? : a comparative assessment of corporate sustainability
- Authors: Hamadziripi, Friedrich
- Date: 2016
- Subjects: Corporate governance -- Law and legislation Social responsibility of business Sustainable development
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/5916 , vital:29419
- Description: This study sets out to answer the question whether compliance with the directors’ fiduciary duty to act in the best interests of the company undermines other stakeholders’ interests and corporate sustainability. It adopts a comparative approach whereby the South African legal system is compared to that of the United Kingdom, Canada, and the United States of America where corporate scandals in the last two decades resulted in the collapse of some large companies. Qualitative research methods namely the critical and evaluation, comparative and legal historical approaches are employed. The adoption of the comparative and historical approach to this study makes it significant for company law literature. The study is hinged on two company law principles. The first one is that a company is a juristic and fictitious person. The second one is the separation of ownership and control of a company. To effectively understand how the directors’ fiduciary duty to act in the best interests of the company has evolved over time, a historical overview of fiduciary obligations is presented. Four different views about the origins of fiduciary obligations are examined. It is submitted that the old English case of Keech v Sandford1 and the South Sea Company Bubble are very significant to the development of fiduciary obligations and their assimilation into company law. Thereafter, a discussion on the nature and scope of the directors’ duty in question is presented. An analysis of the relationship between directors and the company and how rights and duties between the two legal subjects arise is also undertaken. It will be shown that the directors’ fiduciary duty to act in the best interests of the company is broken down into a number of mandatory rules. After outlining some selected company stakeholders, an argument is presented on who the legitimate beneficiaries of directors’ fiduciary obligations should be. Further, the study provides an explanation of the concept of ‘the best interests of a company’ before addressing the tension between the pursuit of sustainability and the best interests of the company. An important question in the context of this study is how can directors’ fiduciary obligations be enforced? Identifying that there is public and private enforcement of fiduciary obligations, this study focusses on private enforcement which mainly consists of judicial and administrative remedies. Judicial remedies especially the derivative action and oppression remedies will be examined. A greater part of the discussion will dwell heavily on whether the available remedies are relevant and/or effective in protecting various stakeholders’ interests. Due to the nature of the office of director, it can be contended that directors should not be held liable for every decision they make. As such, American courts have come up with what has come to be known as the business judgment rule. This rule protects directors from civil liability if they act in good faith, with due care, without any personal interest and within the director’s authority. It will be shown that the rule manifests or operates either as an abstention doctrine, as a standard of liability or as an immunity doctrine. As an abstention or standard of liability doctrine, the rule requires the plaintiff to rebut a presumption that directors acted in good faith in the best interests of the company. As an immunity doctrine, the rule requires the director to prove that s/he qualifies for the immunity.
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- Date Issued: 2016
Taking gendered harms seriously : the utility of rape trauma syndrome evidence in dispelling rape myths in criminal trials
- Authors: Nkala, Amanda Nothabo
- Date: 2016
- Subjects: Rape trauma syndrome Women -- Crimes against Rape -- Psychological aspects
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/13458 , vital:39668
- Description: Rape is a violent crime marked by underreporting and low conviction rates. Notwithstanding the fact that most rape laws have been made to be gender-neutral, the statistics of rape are still devastatingly high even on a global scale. The majority of the victims are still predominantly females especially in the context of acquaintance rape. It is an uncontestable fact that rape usually occurs in secret making it possible for one to falsely accuse another and effectively rendering it difficult to refute. In light of this, victims who have managed to reach the courts have come face to face with a myriad of stereotypical beliefs and rape myths about rape victims. These have dealt a blow to their cases once their credibility is doubted because they may have exhibited behaviour that does not match with the classic or real rape victim as expected by the society. However rape is an egregiously unique crime that presents with serious psychological issues for the victim. As such it is possible for a rape victim to exhibit counterintuitive behaviour that can only be sensibly explained by an expert who has delved in human behavioural sciences. The alleged victim will be questioned on things like lengthy delay in reporting, returning to the scene of the crime, asking for taxi money the morning after the rape or even failing to scream and fight off the alleged assailant. Unfortunately, the psychological effects of rape have more often than not been overlooked in our criminal justice system giving way for blame shifting in that the female victim is called upon to account for why the rape may have happened to her. These psychological reactions, responses and counterintuitive behaviour have been characterized as Rape Trauma Syndrome by specialists in psychology and psychiatry. In the context of this study, Rape Trauma Syndrome is a form of expert opinion evidence which is relevant, helpful and necessary because it can dispel rape myths and stereotypical beliefs about rape victims by educating the courts about the psychological reactions of rape victims. Against this backdrop, this research project investigates the utility of Rape Trauma Syndrome evidence in dispelling rape myths in rape trials, focusing especially on the admissibility and use of that syndrome as evidence in other jurisdictions at the level of comparative analysis in order to establish whether it can be utilised in the South African context.
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- Date Issued: 2016
The legal protection of foreign direct investment in the new millennium :a critical assessment with a focus on South Africa and Zimbabwe
- Authors: Chidede, Talkmore
- Date: 2016
- Subjects: Investments, Foreign -- Law and legislation Economic policy
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/7919 , vital:30814
- Description: The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
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- Date Issued: 2016
An assessment of the National Credit Act 34 of 2005 as a vehicle for expanding financial inclusion in South Africa
- Authors: Wazvaremhaka, Tinashe
- Date: 2017
- Subjects: South Africa. -- National Credit Act, 2005 Credit -- Law and legislation Financial institutions -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10353/9045 , vital:34221
- Description: The advancement of financial inclusion is at the top of the international development agenda for policy makers and development institutions. Empirical evidence indicates that households that participate in the mainstream financial services sector can start and grow businesses, manage risk, invest in education, save and absorb financial shocks. National Treasury recently recognised financial inclusion as a policy priority and emphasised the need to enhance it under the new twin peaks system of regulation. This study submits that a conducive legal and regulatory framework is an important key to unlocking the benefits of financial inclusion. More pointedly, it demonstrates that the National Credit Act 34 of 2005 (NCA) plays a central role in promoting financial inclusion since access to unsafe and exploitative credit can lead the poor to pay more, and thereby affecting their ability to access credit and other financial services. Although financial inclusion has been improving in South Africa, over-indebtedness remains pervasive. Access to credit has been exacerbating the financial exclusion of many historically disadvantaged and low income consumers in spite of the NCA. Therefore, this study undertakes a critical assessment of selected aspects of the NCA with a view to determining whether the Act is up to the task of expanding financial inclusion in South Africa. Arguments and suggestions have been made in this study to refine the NCA (and other related laws) such that it promotes access to safe and affordable credit for previously disadvantaged and low income population groups, encourages responsible lending and provides effective debt relief mechanisms.
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- Date Issued: 2017