Affirmative action and people with disabilities in the work place
- Authors: Mpambani, Ntombizodwa Rose
- Date: 2023-04
- Subjects: Affirmative action programs -- Law and legislation , People with disabilities , Work environment
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60685 , vital:66321
- Description: Worldwide and in South Africa, affirmative action has been extensively used both as a policy instrument and a means of social reparation and reform. This study focuses on compliance and monitoring for affirmative action for persons with disabilities in the South African workplace. Affirmative action is a transitory method of advancing equality. Constitutionally, it is acknowledged in South Africa that affirmative action in the form of substantive equality. This study explores whether or not employers utilize affirmative action in accordance with the Employment Equity Act. It also aims to evaluate how the Department of Employment and Labour and the courts implement affirmative action. The study considers the relevant literature available, statutes, and employment equality policies, as well as an evaluation of case law. In South Africa, individuals who have disabilities are one of the groups that the Employment Equity Act attempts to protect. People with disabilities are disadvantaged in the work arena, which has substantial psychological, social, and economic consequences. The government established the numerical target that employers must strive to achieve in the workplace. Consequently, it is essential to investigate further the obstacles that impede the employment of persons with disabilities including the physical accessibility of the environment and information, transportation, the attitudes of others (such as employers and co-employees), and the extra expenditures associated with managing a disability. The delivery, nature, and structure of an individual's education is one of the first determinants of socialization into society. There is a delicate relationship between poverty, disability, and social assistance programs that may have a substantial effect on the employment and job search of persons with disabilities. Interestingly, South Africa combines significant unemployment rates with effective social assistance programs. There are compelling economic, social, psychological, and political arguments for boosting the employment of those with disabilities. The policy of affirmative action is effective, but the study notes that the objectives have not yet been realized. The situation in South Africa is compounded by a variety of confusing circumstances, including substantial unemployment, strong social assistance, and disabled individuals with poor skill levels. The survey concluded that the majority of firms do not execute affirmative action appropriately and that enforcement is minimal. It is recommended that disabled workers and labour unions confront employers that do not comply with the Employment Equity Act. To guarantee that persons with disabilities are completely integrated into the workforce, proactive and constructive strategies must be used. It is the morally just and virtuous thing to do, not just for disabled people but for all people. , Thesis (LLM) -- Faculty of Law, School of School: Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Mpambani, Ntombizodwa Rose
- Date: 2023-04
- Subjects: Affirmative action programs -- Law and legislation , People with disabilities , Work environment
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60685 , vital:66321
- Description: Worldwide and in South Africa, affirmative action has been extensively used both as a policy instrument and a means of social reparation and reform. This study focuses on compliance and monitoring for affirmative action for persons with disabilities in the South African workplace. Affirmative action is a transitory method of advancing equality. Constitutionally, it is acknowledged in South Africa that affirmative action in the form of substantive equality. This study explores whether or not employers utilize affirmative action in accordance with the Employment Equity Act. It also aims to evaluate how the Department of Employment and Labour and the courts implement affirmative action. The study considers the relevant literature available, statutes, and employment equality policies, as well as an evaluation of case law. In South Africa, individuals who have disabilities are one of the groups that the Employment Equity Act attempts to protect. People with disabilities are disadvantaged in the work arena, which has substantial psychological, social, and economic consequences. The government established the numerical target that employers must strive to achieve in the workplace. Consequently, it is essential to investigate further the obstacles that impede the employment of persons with disabilities including the physical accessibility of the environment and information, transportation, the attitudes of others (such as employers and co-employees), and the extra expenditures associated with managing a disability. The delivery, nature, and structure of an individual's education is one of the first determinants of socialization into society. There is a delicate relationship between poverty, disability, and social assistance programs that may have a substantial effect on the employment and job search of persons with disabilities. Interestingly, South Africa combines significant unemployment rates with effective social assistance programs. There are compelling economic, social, psychological, and political arguments for boosting the employment of those with disabilities. The policy of affirmative action is effective, but the study notes that the objectives have not yet been realized. The situation in South Africa is compounded by a variety of confusing circumstances, including substantial unemployment, strong social assistance, and disabled individuals with poor skill levels. The survey concluded that the majority of firms do not execute affirmative action appropriately and that enforcement is minimal. It is recommended that disabled workers and labour unions confront employers that do not comply with the Employment Equity Act. To guarantee that persons with disabilities are completely integrated into the workforce, proactive and constructive strategies must be used. It is the morally just and virtuous thing to do, not just for disabled people but for all people. , Thesis (LLM) -- Faculty of Law, School of School: Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
An evaluation of the national minimum wage dispensation
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Masenya, Mogodi
- Date: 2023-04
- Subjects: Evaluation , Minimum wage -- distribution , South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60807 , vital:67833
- Description: After South Africa became a democratic country, there was a shift in the labour and employment sector. This led to introduction of new labour laws which would be in harmony with the constitutional dream and objectives. As such, the BCEA was introduced to bring about change to the basic conditions of employment. As a result of this, new minimum wages policies and laws were enacted. The wages were to be determined by the following means: first way was by means of bargaining council agreements, the second way by means of statutory council agreements, and the third way by means of sectoral determinations. The sectoral determinations policy was introduced through the BCEA. The BCEA through the ECC promulgated sectoral determinations which was aimed to establish minimum wages and conditions of employment for workers in the sectors deemed to be vulnerable. A minimum wage was firstly adopted in New Zealand and in European countries as early as the 19th century. This policy was then widely adopted after the establishment of the International Labour Organisation. The purpose or aim of a minimum wage is to protect workers against exploitatively low pay and to ensure a just and equitable share of the profits of work, thus creating a minimum living wage for all those that are employed and in need of such protection. Minimum wages are also often used as a policy tool to reduce poverty and inequality, including between men and women, by advocating for equal pay for work of equal value. Convention No. 131 and Recommendation No 135 are the key international conventions that determine minimum wage fixing. Convention No. 131 and Recommendation No. 135 seek to ensure that the minimum wage is set at a certain level that allows workers and their families to meet their needs. Article 4 of Convention No. 131 requires the creation and maintenance of machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners covered under article 1 can be fixed and adjusted from time to time. However, the situation of minimum wages differs between developed and developing countries. This raises a concern, more particularly, whether developing countries can be able to adopt the minimum wage policy. This research makes investigate the adoption of iv minimum wage policy in developed and developing countries, and how it affected their socio-economic status. On about 2018, South Africa enacted the National Minimum Wage Act. This Act was aimed at establishing a floor of minimum wage for all employees. This Act was intended to promote and protect vulnerable workers who were left out from the previous wage policies. The long-term aim of a minimum wage was to remove the problem of poverty pay, which exists when the earnings from paid work do not result in a living minimum wage and fail to push people out of poverty. When this Act was enacted, the national minimum wage floor was set at R20 per hour. However, in EPWP, Domestic Worker, and Farm workers had lower rates because they were regulated by other laws. Furthermore, there were challenges of non-compliance by employers. The national minimum wage policy as a socio-economic tool has had an impact on several levels of the economy. This policy has contributed to either alleviation or elevation of poverty and unemployment. Therefore, this study looks at the impact the minimum wage has had on these 2 aspects of life. The research provides a specific asymmetric data of the impact of the policy in all sectors throughout the time since this policy was adopted. It further shows how the minimum wage policy intervention has been affected by covid 19 pandemic. This empirical evidence is provided by way of charts and graphs to demonstrate the changes that has occurred. At the end of the treatise a conclusion on how this policy has affected the South African economy is reached. Furthermore, recommendations on how economic risks posed by the minimum wage policy can be reduced. , Thesis (LLM) -- Faculty of Law, School of Mercantile law, 2023
- Full Text:
- Date Issued: 2023-04
Legal aspects of fairtrade objectives and socio-economic development in South Africa
- Authors: Young, Lindsay
- Date: 2023-04
- Subjects: Law--Psychological aspects , Balance of trade , Socio-economic status -- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60901 , vital:69016
- Description: This dissertation aims to draw connections between Fairtrade and the socio-economic development objectives for South Africa in order to identify whether Fairtrade can contribute to socio-economic development in South Africa. In order to draw these connections, Fairtrade is examined in the context of the international trade system, Fairtrade is analysed in terms of socio-economic development in Africa, and the specific socio-economic development objectives for South Africa are outlined. Thereafter, in chapter 5, connections are drawn between Fairtrade and the socioeconomic development objectives for South Africa. Finally, the research is concluded by summarising the main finding of whether Fairtrade can contribute to socioeconomic development in South Africa, and setting out the key findings that were reached in answer to the sub-questions posed. This research is conducted by way of a literature review that draws from various research fields due to the nature of the socio-economic issues involved. The findings indicate that Fairtrade is sufficiently aligned to the socio-economic development objectives for South Africa to be used as a tool to contribute towards socio-economic development in South Africa. The research also suggests ways in which the connections between Fairtrade and South Africa’s socio-economic development objectives can be strengthened. , Thesis (LLM) -- Faculty of Law, School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Young, Lindsay
- Date: 2023-04
- Subjects: Law--Psychological aspects , Balance of trade , Socio-economic status -- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60901 , vital:69016
- Description: This dissertation aims to draw connections between Fairtrade and the socio-economic development objectives for South Africa in order to identify whether Fairtrade can contribute to socio-economic development in South Africa. In order to draw these connections, Fairtrade is examined in the context of the international trade system, Fairtrade is analysed in terms of socio-economic development in Africa, and the specific socio-economic development objectives for South Africa are outlined. Thereafter, in chapter 5, connections are drawn between Fairtrade and the socioeconomic development objectives for South Africa. Finally, the research is concluded by summarising the main finding of whether Fairtrade can contribute to socioeconomic development in South Africa, and setting out the key findings that were reached in answer to the sub-questions posed. This research is conducted by way of a literature review that draws from various research fields due to the nature of the socio-economic issues involved. The findings indicate that Fairtrade is sufficiently aligned to the socio-economic development objectives for South Africa to be used as a tool to contribute towards socio-economic development in South Africa. The research also suggests ways in which the connections between Fairtrade and South Africa’s socio-economic development objectives can be strengthened. , Thesis (LLM) -- Faculty of Law, School of Public Law, 2023
- Full Text:
- Date Issued: 2023-04
The enforcement of settlement of agreements and arbitration awards
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Thathoba, Portia Chwayita
- Date: 2023-04
- Subjects: Law enforcement , Settlements (Law) , Arbitration and award -- Law and legislation
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60696 , vital:66366
- Description: The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Full Text:
- Date Issued: 2023-04
The legislation regulation of consensual sexual acts by 16 and 17 years
- Authors: Nkontso, Siviwe
- Date: 2023-04
- Subjects: Delegated legislation , Sexual intercourse , Teenagers
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60718 , vital:66461
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”), was promulgated to consolidate the laws relating to sexual offences in South Africa. One of the most important aspects of SORMA was that it made provision for the prosecution of those who engaged in sexual acts with minor children. However, SORMA had a major drawback in that it not only criminalised consensual sexual acts with children by adults, but also criminalised consensual sexual acts between children themselves. Thus, children could be prosecuted for engaging in consensual sexual conduct with each other. Stemming from this peculiar position, the provisions of section 15 (statutory rape) and section 16 (statutory sexual assault), insofar as they related to the prosecution of adolescents for engaging in consensual sexual acts with each other, was constitutionally challenged by various human rights organisations. The Constitutional Court in Teddy Bear Clinic v Minister of Justice and Constitutional Development 2014 (2) SA (CC) found that the provisions of section 15 and 16 of SORMA were unconstitutional insofar as they criminalised consensual sexual acts between adolescents older than 12 but younger than 16. The original version of SORMA, for purposes of sections 15 and 16, defined a child as a person under the age of 16 years. Only children younger than 16 years received protection under SORMA. The provisions of sections 15 and 16 of SORMA were the subject of a constitutional challenge in Teddy Bear Clinic. However, the position of 16 and 17 year old children was not dealt with, as it did not form part of the issues that had to be decided by the court. Subsequent to the Teddy Bear Clinic judgment, SORMA was amended, and the amended version defined a child as a person younger than 18 years. Despite this, 16 and 17 year old children did not fall within the ambit of protection provided by SORMA. They were still exposed to prosecution for consensual sexual acts with their adolescent counterparts. Moreover, they were not protected against adult sexual predators who prey on young children. Effectively, SORMA provided some degree of protection, but such protection is not sufficient, and it is contrary to the best interests of the child principle. vi Thus, this research project seeks to highlight, assess and criticise the failure of SORMA to provide adequate legislative protection to 16 and 17 year old children. They still face the possibility of prosecution for consensual sexual acts with other adolescent children, and, they are not offered any protection from adult sexual predators. This position is unacceptable as it is contrary to the spirit and purport of the Constitution, specifically the best interests of the child principle, an important international law principle. Article 3 (1) of the Convention on the Rights of the Child provides that in all matters concerning children, the best interests of the child shall be a primary consideration. The African Charter on the Rights and Welfare of the Child provides that in all actions concerning the child, the best interests of the child shall be the primary consideration. Thus, the lack of protection of 16 and 17 year old children under SORMA is not only contrary to the Constitution, but also to a fundamental international law principle. , Thesis (LLM) -- Faculty of Law, School of Criminal & Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Nkontso, Siviwe
- Date: 2023-04
- Subjects: Delegated legislation , Sexual intercourse , Teenagers
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60718 , vital:66461
- Description: The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“SORMA”), was promulgated to consolidate the laws relating to sexual offences in South Africa. One of the most important aspects of SORMA was that it made provision for the prosecution of those who engaged in sexual acts with minor children. However, SORMA had a major drawback in that it not only criminalised consensual sexual acts with children by adults, but also criminalised consensual sexual acts between children themselves. Thus, children could be prosecuted for engaging in consensual sexual conduct with each other. Stemming from this peculiar position, the provisions of section 15 (statutory rape) and section 16 (statutory sexual assault), insofar as they related to the prosecution of adolescents for engaging in consensual sexual acts with each other, was constitutionally challenged by various human rights organisations. The Constitutional Court in Teddy Bear Clinic v Minister of Justice and Constitutional Development 2014 (2) SA (CC) found that the provisions of section 15 and 16 of SORMA were unconstitutional insofar as they criminalised consensual sexual acts between adolescents older than 12 but younger than 16. The original version of SORMA, for purposes of sections 15 and 16, defined a child as a person under the age of 16 years. Only children younger than 16 years received protection under SORMA. The provisions of sections 15 and 16 of SORMA were the subject of a constitutional challenge in Teddy Bear Clinic. However, the position of 16 and 17 year old children was not dealt with, as it did not form part of the issues that had to be decided by the court. Subsequent to the Teddy Bear Clinic judgment, SORMA was amended, and the amended version defined a child as a person younger than 18 years. Despite this, 16 and 17 year old children did not fall within the ambit of protection provided by SORMA. They were still exposed to prosecution for consensual sexual acts with their adolescent counterparts. Moreover, they were not protected against adult sexual predators who prey on young children. Effectively, SORMA provided some degree of protection, but such protection is not sufficient, and it is contrary to the best interests of the child principle. vi Thus, this research project seeks to highlight, assess and criticise the failure of SORMA to provide adequate legislative protection to 16 and 17 year old children. They still face the possibility of prosecution for consensual sexual acts with other adolescent children, and, they are not offered any protection from adult sexual predators. This position is unacceptable as it is contrary to the spirit and purport of the Constitution, specifically the best interests of the child principle, an important international law principle. Article 3 (1) of the Convention on the Rights of the Child provides that in all matters concerning children, the best interests of the child shall be a primary consideration. The African Charter on the Rights and Welfare of the Child provides that in all actions concerning the child, the best interests of the child shall be the primary consideration. Thus, the lack of protection of 16 and 17 year old children under SORMA is not only contrary to the Constitution, but also to a fundamental international law principle. , Thesis (LLM) -- Faculty of Law, School of Criminal & Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
The prevention of money laundering in the use of cryptocurrency
- Authors: Mnyakama, Mzimkhulu
- Date: 2023-04
- Subjects: Money laundering--Prevention , Digital currency
- Language: English
- Type: Master's theses , thesis
- Identifier: http://hdl.handle.net/10948/60645 , vital:66287
- Description: Money laundering has become common in the world and the introduction of cryptocurrencies has created another avenue that makes it easier to move funds between jurisdictions without anyone knowing. A block chain technology is used to process peer-to-peer electronic payments utilising decentralised virtual currencies known as cryptocurrencies. Although they are not yet regulated, cryptocurrencies are prevalent in South Africa and pose a risk of being used for money laundering and other illicit activities. The regulation of cryptocurrencies in South Africa to prevent money laundering is what is being examined by this research project. The objectives were to understand the concept of money laundering, cryptocurrency and the inherent risks of cryptocurrency in money laundering. An analysis and examination of the difficult concept of cryptocurrency and the risks of money laundering was done. The study demonstrated that cryptocurrencies are decentralised convertible virtual currencies based on cryptographic algorithms. Cryptocurrencies are not monitored by a central body. The research reveals that the use of cryptocurrencies presents risks of money laundering and other illegal activities because of its decentralised, anonymous, peer-to-peer, and unregulated nature. The study focused on the prevention of money laundering using cryptocurrency. International regulatory frameworks of countries such as Canada, United States of America, European Union and Australia were discussed and compared to the South African regulatory developments. It was established that the legal frameworks developed by Canada, the United States of America, the European Union, and Australia aim to mitigate the risk of money laundering associated with the use of cryptocurrencies. Additionally, it was discovered that there is no legislative framework in South Africa to regulate cryptocurrencies, however SARB acknowledged that efforts are being made to develop one. ix It was determined that South Africa urgently needs regulatory interventions in the continued use of cryptocurrencies. The author presented recommendations based on this need, including incorporating cryptocurrencies into the current legal framework by designating them as financial products and adopting a proactive rather than a reactionary approach to the developments of cryptocurrencies. , Thesis (LLM) -- Faculty of Law, School of School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Mnyakama, Mzimkhulu
- Date: 2023-04
- Subjects: Money laundering--Prevention , Digital currency
- Language: English
- Type: Master's theses , thesis
- Identifier: http://hdl.handle.net/10948/60645 , vital:66287
- Description: Money laundering has become common in the world and the introduction of cryptocurrencies has created another avenue that makes it easier to move funds between jurisdictions without anyone knowing. A block chain technology is used to process peer-to-peer electronic payments utilising decentralised virtual currencies known as cryptocurrencies. Although they are not yet regulated, cryptocurrencies are prevalent in South Africa and pose a risk of being used for money laundering and other illicit activities. The regulation of cryptocurrencies in South Africa to prevent money laundering is what is being examined by this research project. The objectives were to understand the concept of money laundering, cryptocurrency and the inherent risks of cryptocurrency in money laundering. An analysis and examination of the difficult concept of cryptocurrency and the risks of money laundering was done. The study demonstrated that cryptocurrencies are decentralised convertible virtual currencies based on cryptographic algorithms. Cryptocurrencies are not monitored by a central body. The research reveals that the use of cryptocurrencies presents risks of money laundering and other illegal activities because of its decentralised, anonymous, peer-to-peer, and unregulated nature. The study focused on the prevention of money laundering using cryptocurrency. International regulatory frameworks of countries such as Canada, United States of America, European Union and Australia were discussed and compared to the South African regulatory developments. It was established that the legal frameworks developed by Canada, the United States of America, the European Union, and Australia aim to mitigate the risk of money laundering associated with the use of cryptocurrencies. Additionally, it was discovered that there is no legislative framework in South Africa to regulate cryptocurrencies, however SARB acknowledged that efforts are being made to develop one. ix It was determined that South Africa urgently needs regulatory interventions in the continued use of cryptocurrencies. The author presented recommendations based on this need, including incorporating cryptocurrencies into the current legal framework by designating them as financial products and adopting a proactive rather than a reactionary approach to the developments of cryptocurrencies. , Thesis (LLM) -- Faculty of Law, School of School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
The programmatic enforcement of the affirmative action provisions of the employment equity act, 55 of 1998
- Authors: Ntshoza, Zoleka Albertina
- Date: 2023-04
- Subjects: Program -- implementation , Affirmative action programs , Discrimination in employment -– Law and legislation —- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60832 , vital:67863
- Description: This study explores the mechanisms contained in the Employment Equity Act of 1998 (EEA) that are in place to ensure that all employers comply with the EEA. The research introduces the topic and the background of the EEA and further discusses its important provisions. The EEA is an Act which was adopted to enable section 9 and 23 (1) of the Constitution. It is there to ensure equality in the workplace. The purpose of the EEA is to eliminate unfair discrimination in the workplace and promote equity for designated groups. This research discusses the application of the EEA and its interpretation by our courts. It does this by discussing leading cases of the EEA and other relevant fields of the labour law. Amongst other discussions in the research is the case of South African Police Service v Solidarity obo Bernard. In this case, a white female employee referred a matter of unfair discrimination to the court for her non-appointment, even though she was the only one who qualified for the job. The employer had preferred a black female candidate for the position. The court held that the discrimination was fair and relied on the employers Employment Equity Plan to determine whether the discrimination was just and equitable in terms of section 36 of the Constitution. Thereafter, this research considers the role of different bodies or structures that are in place to ensure compliance and implementation of affirmative action policies as outlined in the EEA. At the centre of this research is the role played by the inspectorate, the Commission for Employment Equity, and the Director General of the Department of Employment and Labour. These are the structures of the Department of Employment and Labour that are charged with enforcement of the labour laws and policies. Each structure has its own legislative duties. For example, in terms of the EEA, the inspector must conduct inspections for the employer’s workplace, make recommendations for compliance where it is necessary, and issue fines as a final sanction for non-compliance. On the other hand, the Commission for Employment Equity (CEE) investigating compliance, issuing annual reports, doing compliance reviews, issuing certificates of compliance and non-compliance and awards etc. In addition, the research also explores the enforcement penalties imposed by the EEA. It also incorporates a comparative study between the penalties imposed by South Africa with that of Namibia and Canada. This study will show how Canada’s EEA and South Africa are lenient compared to the Namibian one. In Namibia, non-compliance is not only sanctioned with fines but with other harsh sanctions that have detrimental effects on non-complying employers. Finally, the research makes a summary and findings of the study. Thereafter, it discusses the failures and shortfalls of the EEA. These critiques are made in comparison with other EEA such as Namibia, and further the researcher offers her personal critiques and recommendations to the current system. It then concludes by summarising the findings of the final chapter , Thesis (LLM) -- Faculty of Law, School of of Labour Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Ntshoza, Zoleka Albertina
- Date: 2023-04
- Subjects: Program -- implementation , Affirmative action programs , Discrimination in employment -– Law and legislation —- South Africa
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60832 , vital:67863
- Description: This study explores the mechanisms contained in the Employment Equity Act of 1998 (EEA) that are in place to ensure that all employers comply with the EEA. The research introduces the topic and the background of the EEA and further discusses its important provisions. The EEA is an Act which was adopted to enable section 9 and 23 (1) of the Constitution. It is there to ensure equality in the workplace. The purpose of the EEA is to eliminate unfair discrimination in the workplace and promote equity for designated groups. This research discusses the application of the EEA and its interpretation by our courts. It does this by discussing leading cases of the EEA and other relevant fields of the labour law. Amongst other discussions in the research is the case of South African Police Service v Solidarity obo Bernard. In this case, a white female employee referred a matter of unfair discrimination to the court for her non-appointment, even though she was the only one who qualified for the job. The employer had preferred a black female candidate for the position. The court held that the discrimination was fair and relied on the employers Employment Equity Plan to determine whether the discrimination was just and equitable in terms of section 36 of the Constitution. Thereafter, this research considers the role of different bodies or structures that are in place to ensure compliance and implementation of affirmative action policies as outlined in the EEA. At the centre of this research is the role played by the inspectorate, the Commission for Employment Equity, and the Director General of the Department of Employment and Labour. These are the structures of the Department of Employment and Labour that are charged with enforcement of the labour laws and policies. Each structure has its own legislative duties. For example, in terms of the EEA, the inspector must conduct inspections for the employer’s workplace, make recommendations for compliance where it is necessary, and issue fines as a final sanction for non-compliance. On the other hand, the Commission for Employment Equity (CEE) investigating compliance, issuing annual reports, doing compliance reviews, issuing certificates of compliance and non-compliance and awards etc. In addition, the research also explores the enforcement penalties imposed by the EEA. It also incorporates a comparative study between the penalties imposed by South Africa with that of Namibia and Canada. This study will show how Canada’s EEA and South Africa are lenient compared to the Namibian one. In Namibia, non-compliance is not only sanctioned with fines but with other harsh sanctions that have detrimental effects on non-complying employers. Finally, the research makes a summary and findings of the study. Thereafter, it discusses the failures and shortfalls of the EEA. These critiques are made in comparison with other EEA such as Namibia, and further the researcher offers her personal critiques and recommendations to the current system. It then concludes by summarising the findings of the final chapter , Thesis (LLM) -- Faculty of Law, School of of Labour Law, 2023
- Full Text:
- Date Issued: 2023-04
The protection of the primary residence of a debtor in debt enforcement and insolvency
- Ngobese, Surname, Nokhwezi Xatyiswa
- Authors: Ngobese, Surname, Nokhwezi Xatyiswa
- Date: 2023-04
- Subjects: Protection , Debtor and creditor -- Law and legislation , Bankruptcy -- Law and legislature
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/61328 , vital:70288
- Description: Many people, particularly in South Africa, turn to borrowing money to pay for their everyday expenses. It is also generally acknowledged that mortgage financing is crucial to our economy and that it should remain readily available to people with a variety of incomes. Banks, and other secured lenders need confirmations that their security is reasonably safe to ensure that this remains the case. A debtor with immovable property is preferred because should the debtor fail to comply with his contractual obligations and there is no movable property to attach, the creditor will proceed to attach the immovable property of that debtor. In South Africa the law relating to debt enforcement proceedings and the provisions of the Insolvent Act allow for the attachment of the primary residence of a debtor/insolvent. There is a judicial process that is followed for the attachment of the house through debt enforcement. During insolvency the debtor is divested of his property immediately after granting of the sequestration order. These proceedings go as far as stripping a poor person of even a RDP house that they obtained through the Housing Act, a programme designed to provide housing to the poor. This study examines the relationship between the right to access housing and the right to human dignity, considering South Africa's past, the idea of transformative constitutionalism, and the argument that the 1996 South African Constitution's transformative vision is one that is committed to addressing socio-economic inequality. The legal position in South Africa is compared to that of the United Kingdom and the recommendation made by the study is that a stay in proceedings during insolvency for a defined period before the home of the insolvent is sold in execution would help advance the goals of the government and protect rights of those people whose estates are declared insolvent. Further, a complete exclusion of RDP houses from debt enforcement proceeding and insolvency, is suggested. The rights to equality and the right to property are considered in favour of the creditor. All rights are considered against the limitation clause, and it is submitted that a stay in sale of the primary household for a specific period during insolvency proceedings and the complete exclusion of RDP homes from sales in execution and sales during sequestration would not amount to an unjustifiable limitation of the creditor’s rights. , Thesis (LLM) -- Faculty of Law, School of School of Private Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Ngobese, Surname, Nokhwezi Xatyiswa
- Date: 2023-04
- Subjects: Protection , Debtor and creditor -- Law and legislation , Bankruptcy -- Law and legislature
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/61328 , vital:70288
- Description: Many people, particularly in South Africa, turn to borrowing money to pay for their everyday expenses. It is also generally acknowledged that mortgage financing is crucial to our economy and that it should remain readily available to people with a variety of incomes. Banks, and other secured lenders need confirmations that their security is reasonably safe to ensure that this remains the case. A debtor with immovable property is preferred because should the debtor fail to comply with his contractual obligations and there is no movable property to attach, the creditor will proceed to attach the immovable property of that debtor. In South Africa the law relating to debt enforcement proceedings and the provisions of the Insolvent Act allow for the attachment of the primary residence of a debtor/insolvent. There is a judicial process that is followed for the attachment of the house through debt enforcement. During insolvency the debtor is divested of his property immediately after granting of the sequestration order. These proceedings go as far as stripping a poor person of even a RDP house that they obtained through the Housing Act, a programme designed to provide housing to the poor. This study examines the relationship between the right to access housing and the right to human dignity, considering South Africa's past, the idea of transformative constitutionalism, and the argument that the 1996 South African Constitution's transformative vision is one that is committed to addressing socio-economic inequality. The legal position in South Africa is compared to that of the United Kingdom and the recommendation made by the study is that a stay in proceedings during insolvency for a defined period before the home of the insolvent is sold in execution would help advance the goals of the government and protect rights of those people whose estates are declared insolvent. Further, a complete exclusion of RDP houses from debt enforcement proceeding and insolvency, is suggested. The rights to equality and the right to property are considered in favour of the creditor. All rights are considered against the limitation clause, and it is submitted that a stay in sale of the primary household for a specific period during insolvency proceedings and the complete exclusion of RDP homes from sales in execution and sales during sequestration would not amount to an unjustifiable limitation of the creditor’s rights. , Thesis (LLM) -- Faculty of Law, School of School of Private Law, 2023
- Full Text:
- Date Issued: 2023-04
The use of Police force in crowd management
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
- Authors: Moses, Andrew Paul
- Date: 2023-04
- Subjects: Law enforcement , Crowd control
- Language: English
- Type: Master's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60660 , vital:66302
- Description: South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests. , Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 2023
- Full Text:
- Date Issued: 2023-04
Amendments to the labour relations act to curb violent and intractable strikes
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Mafa, Bonolo
- Date: 2022-12
- Subjects: labour union , Violence , Labour law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59841 , vital:62447
- Description: Since the dawn of South Africa’s constitutional democracy, the right to strike has been protected. It is perceived to be fundamental to orderly collective bargaining and the courts have stressed the need to ensure that it is not unjustifiably limited or undermined. In the collective bargaining process, employers and employees have mechanisms at their disposal and a power-play ensues. One such mechanism, for striking employees, is to withhold their labour in an effort to compel employers to succumb to their demands. Newspaper articles and the jurisprudence that has emerged from the courts illustrate that strike-related violence has become a destructive feature of industrial action.[1] Not only are strikes destructive to the economy but they are often associated with violence. The courts have been inundated with claims seeking to interdict violent and protracted strikes. While many commentators are of the view that strike violence is a result of underlying socio-economic issues, which should be addressed by the government, employers and the general public often bear the brunt of the destruction and mayhem left in the wake of violent strikes. In the wake of one of the worst tragedies, the Marikana massacre, which saw 32 striking miners shot and killed when police opened fire at Lonmin's operations in the Northwest province, the South African government, organised labour, and employers were compelled to take swift action to address the deficiencies that existed when it came to the constitutionally entrenched right to strike. The Labour Relations Amendment Act 8 of 2018 seeks to address this. Whilst some of the provisions introduced by the amendments have been the subject matter of litigation resulting in progressive judgments, other provisions are yet to be judicially tested. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
Protection of the environment from pollution emanating from offshore oil installations
- Authors: Kuture, Dudzai Chandisaita
- Date: 2022-12
- Subjects: Marine pollution -- South Africa , Marine Law – South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59710 , vital:62383
- Description: The desperate need for South Africa to develop its oil industry is driven by the goal of improving the social and economic situation in the State. This goal has sparked an interest in expanding the exploration and exploitation of oil within the marine environment to the extent of venturing into uncharted deeper waters.1 This interest has been met with a constant reminder of the Deepwater Horizon explosion as one of the many events that stirred up concerns within the global community on the possibility of an oil spill causing pollution within the marine environment. Also, that explosion and its effects have demonstrated the need for the global community to closely monitor and effectively regulate environmental matters, including the exploration and exploitation of oil and the prevention of oil pollution.2 Therefore, the recent discovery of additional oil deposits in South Africa has confirmed the need to revisit the current legal system regulating the impact on the marine environment including the exploration and exploitation of oil.3 An oil spill causing pollution amongst other pollutants is a significant contributor to loss and damage to the marine environment and its habitat. In developing States like South Africa, an oil spill causing pollution can present challenges due to the scarcity of resources, technology, and knowledge to prepare, prevent and combat the spreading of the pollutant. As it stands, in the event of an oil spill, States must rely on international cooperation and expertise to ensure that the impact does not cause irreversible harm and degradation to the marine environment. South Africa within the global community gives effect to international law by adopting domestic laws that regulate the exploration and exploitation of oil to protect the environment from oil spills causing oil pollution within the marine environment. In addition, the liability caused by oil spills plays a vital role in the need to rehabilitate the marine environment and compensate the aggrieved parties. , Thesis (LLM) -- Faculty of Law, Department of Public law , 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Kuture, Dudzai Chandisaita
- Date: 2022-12
- Subjects: Marine pollution -- South Africa , Marine Law – South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59710 , vital:62383
- Description: The desperate need for South Africa to develop its oil industry is driven by the goal of improving the social and economic situation in the State. This goal has sparked an interest in expanding the exploration and exploitation of oil within the marine environment to the extent of venturing into uncharted deeper waters.1 This interest has been met with a constant reminder of the Deepwater Horizon explosion as one of the many events that stirred up concerns within the global community on the possibility of an oil spill causing pollution within the marine environment. Also, that explosion and its effects have demonstrated the need for the global community to closely monitor and effectively regulate environmental matters, including the exploration and exploitation of oil and the prevention of oil pollution.2 Therefore, the recent discovery of additional oil deposits in South Africa has confirmed the need to revisit the current legal system regulating the impact on the marine environment including the exploration and exploitation of oil.3 An oil spill causing pollution amongst other pollutants is a significant contributor to loss and damage to the marine environment and its habitat. In developing States like South Africa, an oil spill causing pollution can present challenges due to the scarcity of resources, technology, and knowledge to prepare, prevent and combat the spreading of the pollutant. As it stands, in the event of an oil spill, States must rely on international cooperation and expertise to ensure that the impact does not cause irreversible harm and degradation to the marine environment. South Africa within the global community gives effect to international law by adopting domestic laws that regulate the exploration and exploitation of oil to protect the environment from oil spills causing oil pollution within the marine environment. In addition, the liability caused by oil spills plays a vital role in the need to rehabilitate the marine environment and compensate the aggrieved parties. , Thesis (LLM) -- Faculty of Law, Department of Public law , 2022
- Full Text:
- Date Issued: 2022-12
Selected Aspects of the Crime of Necrophilia
- Authors: Somandi, Siphuxolo
- Date: 2022-12
- Subjects: Rape , Necrophilia , Crime of Necrophilia
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60421 , vital:64874
- Description: The treatise begins by defining rape pre and post-Constitution. Through the analysis of the latter, it refers to the Masiya case, particularly in light of extending the definition of rape to align it with the spirit, purport and objects of the Bill of Rights. It further focuses on the rights that Masiya identified as being infringed upon whenever the act of rape occurs. The treatise thereafter discusses the crime of committing sexual acts with a corpse, formerly known as necrophilia. It argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with a "corpse". For an illustration of the latter, the treatise categorises the circumstances of sexual acts committed with corpses into Categories A and B and uses cases in each Category as an aid. Some of the sexual acts by perpetrators begin with the sole purpose of rape but because the rape cannot be achieved due to the resistance of the victim, the perpetrator has no choice but to overcome the resistance of the victim, which in the context of this treatise means killing the victim. The perpetrator thereafter proceeds with what was initially intended, the rape of the victim. However, in the cases considered, the perpetrator is saved by expert evidence to the effect that the victim was dead at the time of penetration and therefore the perpetrator in addition to being convicted for murder is convicted of committing a sexual act with a corpse. The treatise thus argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with the corpse. The treatise highlights the fact that a sexual act with a corpse is a crime of intention. The differing circumstances in which the said crime is committed carries with it a difference in intention and thus should be criminalised differently. This is particularly so when one considers that expert evidence is used to confirm whether or not the victim was dead or alive at the time of the sexual penetration. This confirms that the perpetrator could not have known that the victim was dead at the time of penetration and thus for all intents and purposes, the perpetrator believed he is raping the victim, who he considers to be alive. he treatise thus argues that the perpetrator cannot be saved by expert evidence that surmises that the perpetrator intended to have sexual intercourse with a corpse, the intention that the perpetrator did not carry at the time of committing the crime. The treatise further argues that because rape has been identified as a crime that infringes on human rights, these rights are not extinguished by death thus the same rights are infringed by sexual acts with a corpse. With the aid of some international authorities, the treatise argues that a Category B sexual act committed with a corpse could be criminalised under attempted rape. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
- Authors: Somandi, Siphuxolo
- Date: 2022-12
- Subjects: Rape , Necrophilia , Crime of Necrophilia
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60421 , vital:64874
- Description: The treatise begins by defining rape pre and post-Constitution. Through the analysis of the latter, it refers to the Masiya case, particularly in light of extending the definition of rape to align it with the spirit, purport and objects of the Bill of Rights. It further focuses on the rights that Masiya identified as being infringed upon whenever the act of rape occurs. The treatise thereafter discusses the crime of committing sexual acts with a corpse, formerly known as necrophilia. It argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with a "corpse". For an illustration of the latter, the treatise categorises the circumstances of sexual acts committed with corpses into Categories A and B and uses cases in each Category as an aid. Some of the sexual acts by perpetrators begin with the sole purpose of rape but because the rape cannot be achieved due to the resistance of the victim, the perpetrator has no choice but to overcome the resistance of the victim, which in the context of this treatise means killing the victim. The perpetrator thereafter proceeds with what was initially intended, the rape of the victim. However, in the cases considered, the perpetrator is saved by expert evidence to the effect that the victim was dead at the time of penetration and therefore the perpetrator in addition to being convicted for murder is convicted of committing a sexual act with a corpse. The treatise thus argues that not all sexual acts with a corpse are committed with the sole purpose of having sexual intercourse with the corpse. The treatise highlights the fact that a sexual act with a corpse is a crime of intention. The differing circumstances in which the said crime is committed carries with it a difference in intention and thus should be criminalised differently. This is particularly so when one considers that expert evidence is used to confirm whether or not the victim was dead or alive at the time of the sexual penetration. This confirms that the perpetrator could not have known that the victim was dead at the time of penetration and thus for all intents and purposes, the perpetrator believed he is raping the victim, who he considers to be alive. he treatise thus argues that the perpetrator cannot be saved by expert evidence that surmises that the perpetrator intended to have sexual intercourse with a corpse, the intention that the perpetrator did not carry at the time of committing the crime. The treatise further argues that because rape has been identified as a crime that infringes on human rights, these rights are not extinguished by death thus the same rights are infringed by sexual acts with a corpse. With the aid of some international authorities, the treatise argues that a Category B sexual act committed with a corpse could be criminalised under attempted rape. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
Termination of employment in the public service sector: the constitutionality of the deeming provisions
- Authors: Mbewana, Inga
- Date: 2022-12
- Subjects: unfair labor practices--South Africa , labor law and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60080 , vital:62940
- Description: In terms of the South African Public Service Act,1 an employee who absents him- /herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed to have been discharged by operation of law. A similar provision can also be found in section 14 of the Employment of Educators Act,2 which expressly refers to fourteen (14) consecutive day’s unauthorised absence as opposed to thirty (30) days. Employees whose services have been terminated by operation of law are deprived an opportunity to defend themselves prior to the dismissal as prescribed by the Labour Relations Act3 (LRA). South African courts have grappled with several cases relating to dismissal by operation of law in the public service. The nature of these provisions is such that employees in the public sector are discharged from their duties without any hearing to offer them the opportunity to state their side and/or give a reasonable explanation for their absence. These provisions will thus be referred to herein as “the deeming provisions”. The deeming provisions provide that the discharge / dismissal is “on account of misconduct” however, it does not provide for a pre-dismissal procedure that is to be followed when dismissal is on account of misconduct, as prescribed by the LRA. It has been settled in our law that dismissal by operation of law is not dismissal for the purposes of the LRA. The employees dismissed by operation of law are regarded as if they are not entitled to a hearing. The right to fair labour practices protects everyone including public sector employees, 4 and such right is given effect to by way of enactment of the LRA. The LRA serves to protect public sector employees except where the exclusion is specified. This treatise seeks to challenge the necessity and constitutionality of the deeming provisions on the basis of its contravention of the constitutional right to fair labour practices. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Mbewana, Inga
- Date: 2022-12
- Subjects: unfair labor practices--South Africa , labor law and legislation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60080 , vital:62940
- Description: In terms of the South African Public Service Act,1 an employee who absents him- /herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed to have been discharged by operation of law. A similar provision can also be found in section 14 of the Employment of Educators Act,2 which expressly refers to fourteen (14) consecutive day’s unauthorised absence as opposed to thirty (30) days. Employees whose services have been terminated by operation of law are deprived an opportunity to defend themselves prior to the dismissal as prescribed by the Labour Relations Act3 (LRA). South African courts have grappled with several cases relating to dismissal by operation of law in the public service. The nature of these provisions is such that employees in the public sector are discharged from their duties without any hearing to offer them the opportunity to state their side and/or give a reasonable explanation for their absence. These provisions will thus be referred to herein as “the deeming provisions”. The deeming provisions provide that the discharge / dismissal is “on account of misconduct” however, it does not provide for a pre-dismissal procedure that is to be followed when dismissal is on account of misconduct, as prescribed by the LRA. It has been settled in our law that dismissal by operation of law is not dismissal for the purposes of the LRA. The employees dismissed by operation of law are regarded as if they are not entitled to a hearing. The right to fair labour practices protects everyone including public sector employees, 4 and such right is given effect to by way of enactment of the LRA. The LRA serves to protect public sector employees except where the exclusion is specified. This treatise seeks to challenge the necessity and constitutionality of the deeming provisions on the basis of its contravention of the constitutional right to fair labour practices. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
The extension of collective agreements to non- parties for dismissal for operational requirements
- Authors: Lupondwana, Masiza Howard
- Date: 2022-12
- Subjects: Labor laws and legislation--South Africa , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59724 , vital:62387
- Description: Section 23 (1) of the Constitution of the Republic of South Africa1 states that “Everyone has the right to fair labour practice. (2) Every worker has the right to – (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike’’. The Labour Relations Act 2 (the LRA) was enacted to give effect to section 23 of the Constitution, to regulate the organizational rights of trade union, to promote and facilitate collective bargaining at the workplace and at sectoral level. Its purpose is to advance the economic development, social justice, labour peace and democratization of the workplace by fulfilling the primary objectives of this Act. Firstly, this study seeks to critically examine the extension of collective agreements and effect of section 23(1) (d) in both small- and large-scale retrenchments (s189 & 189 A). A right to fair dismissal is a guaranteed employment right as outlined in section 185 of the LRA. Danielle Venn writes that “legislation is not the only source of employment, labour law clearly set a minimum standard while collective agreements or individual contracts can include provisions more generous to employees than those in legislation.3 This indicates that collective agreements are mechanisms aimed at creating conducive working conditions of employment between the employer and employee in the workplace. By ensuring that resolutions aimed at promoting general welfare of employees are implemented, regulating and enhancement of employee benefits, and other matters of mutual interest are expressed in the agreement. Individual employment law has express terms which clearly state that an employment contract may incorporate the employer’s disciplinary code of conduct. This mostly include procedure to be followed during termination of service or dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Lupondwana, Masiza Howard
- Date: 2022-12
- Subjects: Labor laws and legislation--South Africa , Unfair labor practices
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/59724 , vital:62387
- Description: Section 23 (1) of the Constitution of the Republic of South Africa1 states that “Everyone has the right to fair labour practice. (2) Every worker has the right to – (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike’’. The Labour Relations Act 2 (the LRA) was enacted to give effect to section 23 of the Constitution, to regulate the organizational rights of trade union, to promote and facilitate collective bargaining at the workplace and at sectoral level. Its purpose is to advance the economic development, social justice, labour peace and democratization of the workplace by fulfilling the primary objectives of this Act. Firstly, this study seeks to critically examine the extension of collective agreements and effect of section 23(1) (d) in both small- and large-scale retrenchments (s189 & 189 A). A right to fair dismissal is a guaranteed employment right as outlined in section 185 of the LRA. Danielle Venn writes that “legislation is not the only source of employment, labour law clearly set a minimum standard while collective agreements or individual contracts can include provisions more generous to employees than those in legislation.3 This indicates that collective agreements are mechanisms aimed at creating conducive working conditions of employment between the employer and employee in the workplace. By ensuring that resolutions aimed at promoting general welfare of employees are implemented, regulating and enhancement of employee benefits, and other matters of mutual interest are expressed in the agreement. Individual employment law has express terms which clearly state that an employment contract may incorporate the employer’s disciplinary code of conduct. This mostly include procedure to be followed during termination of service or dismissal. , Thesis (LLM) -- Faculty of Law, Department of Mercantile law, 2022
- Full Text:
- Date Issued: 2022-12
THE LEGALITY OF ANTICIPATORY SELF-DEFENCE AGAINST A MARITIME CYBER-ATTACK
- Authors: DARE, FOLUKE MARY
- Date: 2022-12
- Subjects: Maritime Cybersecurity , Maritime Cyber-Attack , Use of Force -- Maritime Cyber Threats
- Language: English
- Type: Doctorate's theses , text
- Identifier: http://hdl.handle.net/10948/59281 , vital:61895
- Description: This research aims to determine how the principle of anticipatory self-defence, in line with article 51 of the UN Charter, can be applied to the context of maritime cybersecurity. Despite the debates by some scholars to clarify the international law position on anticipatory self-defence in the maritime context, there is no universally accepted legal provision for States to rely on in carrying out anticipatory self-defence against imminent maritime cyber-attacks. This raises the questions concerning the lawful steps States can take in self-defence against maritime cyber-attacks. This research shows the challenges facing States in their bid to comply with the provision of article 51 of the UN Charter to anticipatorily defend against an MCA. The recommendations made are intended to guide States in making policies and mapping our strategies to lawfully tackle the emerging threat of cyber-attacks against maritime security. , Thesis (LLD) -- Faculty of Law, School of Environmental Sciences, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: DARE, FOLUKE MARY
- Date: 2022-12
- Subjects: Maritime Cybersecurity , Maritime Cyber-Attack , Use of Force -- Maritime Cyber Threats
- Language: English
- Type: Doctorate's theses , text
- Identifier: http://hdl.handle.net/10948/59281 , vital:61895
- Description: This research aims to determine how the principle of anticipatory self-defence, in line with article 51 of the UN Charter, can be applied to the context of maritime cybersecurity. Despite the debates by some scholars to clarify the international law position on anticipatory self-defence in the maritime context, there is no universally accepted legal provision for States to rely on in carrying out anticipatory self-defence against imminent maritime cyber-attacks. This raises the questions concerning the lawful steps States can take in self-defence against maritime cyber-attacks. This research shows the challenges facing States in their bid to comply with the provision of article 51 of the UN Charter to anticipatorily defend against an MCA. The recommendations made are intended to guide States in making policies and mapping our strategies to lawfully tackle the emerging threat of cyber-attacks against maritime security. , Thesis (LLD) -- Faculty of Law, School of Environmental Sciences, 2022
- Full Text:
- Date Issued: 2022-12
The Preparation of Expert Witnesses to testify in Medical Negligence Cases
- Authors: Witi, Bulelani
- Date: 2022-12
- Subjects: Medical personnel--Malpractice--Cases , Expect Witness Preparation
- Language: English
- Type: Master , text
- Identifier: http://hdl.handle.net/10948/60432 , vital:64875
- Description: This research seeks to consider whether the preparation of expert witnesses to testify can be said to be fair and not infringe on Constitutional rights. , Thesis (LLM) -- Faculty of Law, Department Procedural Law
- Full Text:
- Date Issued: 2022-12
- Authors: Witi, Bulelani
- Date: 2022-12
- Subjects: Medical personnel--Malpractice--Cases , Expect Witness Preparation
- Language: English
- Type: Master , text
- Identifier: http://hdl.handle.net/10948/60432 , vital:64875
- Description: This research seeks to consider whether the preparation of expert witnesses to testify can be said to be fair and not infringe on Constitutional rights. , Thesis (LLM) -- Faculty of Law, Department Procedural Law
- Full Text:
- Date Issued: 2022-12
The principle of fairness in South African criminal trials
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
The protection and promotion of the rights of journalists in Tanzania.
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
A Critical Assessment of the Legal and Policy Frameworks for Combating Child Trafficking in the Southern African Development Community
- Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
The regulation of communications surveillance in Nigeria
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08