A comparative analysis of the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
- Full Text:
- Date Issued: 2011
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
- Full Text:
- Date Issued: 2011
A study of the Amathole District Municipality's settlement plan in the light of the land reform and spatial planning measures
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
A study of the powers of the Swazi monarch in terms of Swazi law and custom past, present and the future
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
African customary law and gender justice in a progressive democracy
- Authors: Ozoemena, Rita Nkiruka
- Date: 2007
- Subjects: Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3692 , http://hdl.handle.net/10962/d1003207 , Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Description: The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
- Full Text:
- Date Issued: 2007
- Authors: Ozoemena, Rita Nkiruka
- Date: 2007
- Subjects: Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3692 , http://hdl.handle.net/10962/d1003207 , Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Description: The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
- Full Text:
- Date Issued: 2007
An analysis of the countervailing measures used to address the anti-competitive effects of Government subsidies in the African Continental Free Trade Area
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-04
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
An examination of employee participation as provided for in the Labour Relations Act 66 of 1995
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
Aspects of delictual liability in pharmacy practice
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
Assessing the duty to exhaust internal remedies in the South African law
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
Class actions as a means of enhancing access to justice in South Africa
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
Copyright law in the digital environment: DRM systems, anti-circumvention, legislation and user rights
- Authors: Latter, Gareth Paul
- Date: 2012
- Subjects: Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3681 , http://hdl.handle.net/10962/d1003196 , Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Description: This thesis deals with the way in which copyright law is changing in the digital environment and the mechanisms which are facilitating this change. It deals with these issues by analysing the mechanisms of this change, specifically Digital Rights Management (DRM)Systems and anti-circumvention legislation, and the impact which this change is having on the rights of copyright users. The purpose of copyright is to provide an incentive to authors to continue creating while simultaneously providing a public good in allowing the public to use those creations in certain ways. Copyright achieves this purpose by granting both the author and user certain rights. The author is given a limited monopoly over their work in exchange for allowing this work to enter the public sphere and ensuring that users of that work can utilise that work in certain limited ways. The success of copyright thus rests on maintaining the balance between the rights of these parties. The rise of digital technology has created a situation in which copyright content can be easily copied by any party with a Personal Computer and disseminated around the globe instantly via the Internet. In response to these dangers, copyright owners are making use of DRM systems to protect content. DRM systems include various measures of control within its scope. Theses systems allow for copyright owners to control both access and use of content by copyright users. DRM Systems are not foolproof measures of protection however. Technologically sophisticated users are able to circumvent these protection measures. Thus, in order to protect DRM Systems from circumvention, anti-circumvention legislation has been proposed through international treaties and adopted in many countries. The combined effect of these protection measures are open to abuse by copyright owners and serve to curtail the limited rights of copyright users. The end result of this is that the balance which copyright law was created to maintain is disrupted and copyright law no longer fulfils its purpose. This thesis undertakes an analysis of these issues with reference to how these issues affect copyright users in developing countries. This is done with particular reference to possible approaches to this issue in South Africa as South Africa is a signatory to these anti-circumvention treaties.
- Full Text:
- Date Issued: 2012
- Authors: Latter, Gareth Paul
- Date: 2012
- Subjects: Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3681 , http://hdl.handle.net/10962/d1003196 , Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Description: This thesis deals with the way in which copyright law is changing in the digital environment and the mechanisms which are facilitating this change. It deals with these issues by analysing the mechanisms of this change, specifically Digital Rights Management (DRM)Systems and anti-circumvention legislation, and the impact which this change is having on the rights of copyright users. The purpose of copyright is to provide an incentive to authors to continue creating while simultaneously providing a public good in allowing the public to use those creations in certain ways. Copyright achieves this purpose by granting both the author and user certain rights. The author is given a limited monopoly over their work in exchange for allowing this work to enter the public sphere and ensuring that users of that work can utilise that work in certain limited ways. The success of copyright thus rests on maintaining the balance between the rights of these parties. The rise of digital technology has created a situation in which copyright content can be easily copied by any party with a Personal Computer and disseminated around the globe instantly via the Internet. In response to these dangers, copyright owners are making use of DRM systems to protect content. DRM systems include various measures of control within its scope. Theses systems allow for copyright owners to control both access and use of content by copyright users. DRM Systems are not foolproof measures of protection however. Technologically sophisticated users are able to circumvent these protection measures. Thus, in order to protect DRM Systems from circumvention, anti-circumvention legislation has been proposed through international treaties and adopted in many countries. The combined effect of these protection measures are open to abuse by copyright owners and serve to curtail the limited rights of copyright users. The end result of this is that the balance which copyright law was created to maintain is disrupted and copyright law no longer fulfils its purpose. This thesis undertakes an analysis of these issues with reference to how these issues affect copyright users in developing countries. This is done with particular reference to possible approaches to this issue in South Africa as South Africa is a signatory to these anti-circumvention treaties.
- Full Text:
- Date Issued: 2012
Criminal and civil aspects of bribery
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
Discrimination against people with mental health problems in the workplace : a comparative analysis
- Authors: Lake, Rosalind
- Date: 2006
- Subjects: Employees -- Mental health People with disabilities -- Employment -- South Africa People with disabilities -- Employment -- Great Britain People with disabilities -- Employment -- Australia Discrimination in employment -- Law and legislation -- South Africa Discrimination in employment -- Law and legislation -- Australia Discrimination in employment -- Law and legislation -- Great Britain People with disabilities -- Legal status, laws, etc. -- South Africa People with disabilities -- Legal status, laws, etc. -- Australia People with disabilities -- Legal status, laws, etc. -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3705 , http://hdl.handle.net/10962/d1005712
- Description: For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
- Full Text:
- Date Issued: 2006
- Authors: Lake, Rosalind
- Date: 2006
- Subjects: Employees -- Mental health People with disabilities -- Employment -- South Africa People with disabilities -- Employment -- Great Britain People with disabilities -- Employment -- Australia Discrimination in employment -- Law and legislation -- South Africa Discrimination in employment -- Law and legislation -- Australia Discrimination in employment -- Law and legislation -- Great Britain People with disabilities -- Legal status, laws, etc. -- South Africa People with disabilities -- Legal status, laws, etc. -- Australia People with disabilities -- Legal status, laws, etc. -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3705 , http://hdl.handle.net/10962/d1005712
- Description: For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
- Full Text:
- Date Issued: 2006
Head of state immunity under the Rome statute of the International Criminal Court: an analysis of the contemporary legal issues and the African Union’s response to the prosecution of African heads of state
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
Help or hindrance? a critical analysis of the agreement on sanitary and phytosanitary measures, and its effects on developing countries
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
- Full Text:
- Date Issued: 2017