A critical assessment of credit provision governance in South Africa with a focus on balancing the rights and responsibilities of credit providers and consumers under Section 129 of the National Credit Act 34 of 2005
- Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
An employer's ability to substitute a disciplinary hearing sanction
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The application of the prescription act in labour disputes
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The criminal liability of health care practitioners for culpable homicide
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
The regulation of renewable energy in South Africa
- Van Huyssteen, Cornelis Roelof, Adelman, Sam
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
Accountability of the police to provincial governments in South Africa: a comparative analysis of law and practice in the eastern and Western Cape Provinces
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
Standards for the admission of forensic scientific evidence in criminal trials through an expert: Lessons and guidelines for South Africa
- Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
Integration of clinical legal education with procedural law modules
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
Marine Plastic Pollution
- Vilakazi, Bathobile Thandazile Unittah
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
The work In fishing Convention as an Instrument to combat forced labour on fishing vessels: A South African perspective
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12
Cynical evictions and the possessory action in search of an appropriate remedy
- Phillips, Jeremy Alan https://orcid.org/0000-0003-2046-0744
- Authors: Phillips, Jeremy Alan https://orcid.org/0000-0003-2046-0744
- Date: 2021-11
- Subjects: Eviction
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22434 , vital:52285
- Description: A cynical eviction is an unlawful eviction where, in the course of the eviction, the evictee's home is destroyed. They are a notorious brand of eviction which has darkly coloured South Africa's history and social geography. And they persist still to this day. The cynicality of a cynical eviction lies in the fact that because the home, and its composite materials, are destroyed, application of the mandament van spolie is precluded. With the obvious remedy barred, there is academic and judicial disagreement about which remedy should be used instead. Some have argued that, despite the technical difficulties, the mandament van spolie should be relied on, while others insist that the extraordinary constitutional remedy, crafted in the Tswelopele case, is the best option. This dissertation argues that there are obvious shortcomings with both two remedies, and investigates whether a third remedy, the possessory action, might be better-suited. It finds that, while the possessory action has many benefits, it too is deficient in some respects. It ultimately concludes that all three remedies are only, at best, partially appropriate for addressing cynical evictions and that whichever remedy is the most appropriate in the instant cynical eviction should be preferred for that particular case. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-11
- Authors: Phillips, Jeremy Alan https://orcid.org/0000-0003-2046-0744
- Date: 2021-11
- Subjects: Eviction
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22434 , vital:52285
- Description: A cynical eviction is an unlawful eviction where, in the course of the eviction, the evictee's home is destroyed. They are a notorious brand of eviction which has darkly coloured South Africa's history and social geography. And they persist still to this day. The cynicality of a cynical eviction lies in the fact that because the home, and its composite materials, are destroyed, application of the mandament van spolie is precluded. With the obvious remedy barred, there is academic and judicial disagreement about which remedy should be used instead. Some have argued that, despite the technical difficulties, the mandament van spolie should be relied on, while others insist that the extraordinary constitutional remedy, crafted in the Tswelopele case, is the best option. This dissertation argues that there are obvious shortcomings with both two remedies, and investigates whether a third remedy, the possessory action, might be better-suited. It finds that, while the possessory action has many benefits, it too is deficient in some respects. It ultimately concludes that all three remedies are only, at best, partially appropriate for addressing cynical evictions and that whichever remedy is the most appropriate in the instant cynical eviction should be preferred for that particular case. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-11
A critical analysis of the application of South African business rescue provisions on small to medium enterprises (SMEs)
- Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
- Authors: Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
- Date: 2021-09
- Subjects: Small business , Business enterprises , Business failures--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/20328 , vital:45655
- Description: Small to Medium sized Enterprises (SMEs) play an essential role and can be described as the crucial bread and butter of the South African economy. They have the potential to create employment and skills development opportunities pertinent for sustainable economic growth. The unfortunate part is that South African Small to Medium sized Enterprises have the lowest survival rates in the world, resulting in high rates of business failure and job losses. This is because the South African economy does not favour SMEs, which are often burdened with structural hurdles including access to funding, lack of access to markets, inadequate skills, uncompetitive regulatory frameworks and technological disruptions. A developing economy such as South Africa cannot grow if companies facing financial difficulty are constantly liquidated. This is because the liquidation system does not offer companies an opportunity to restructure and possibly function within the context of raised concerns. In order to facilitate sustainable SMEs growth, the legislature has come up with statutory mechanisms to support SMEs and save them from total liquidation. Most recently, the Companies Act 71 of 2008 Chapter 6 introduces a business rescue mechanism applicable to all business structures established under the Act. The purpose of business rescue is to provide companies in financial distress with opportunities to reorganise, strategize and come up with useful corporate reorganisation measures which are useful and efficient in saving the financially distressed company and possibly yielding a better return for the creditors than would have been the case if the company was liquidated. This new enactment is seen as both an improvement and necessary reform from its predecessor, judicial administration which has widely been condemned as a failure. However, despite this improvement, the application of the current business provisions to SMEs is questionable. Although Chapter 6 of the Act makes provision for SMEs, it also presents a number of stumbling blocks, including the fact that services of business rescue practitioners are out of reach for most SMEs in South Africa. The purpose of this study is to consider challenges faced by SMEs in the practical application of the current business rescue provisions. This study further emphasizes the importance of South African SMEs, whilst looking at their challenges and how the Companies Act 71 of 2008 provisions, regarding business rescue, assists SMEs. The study looks at the impediments of certain provisions of business rescue and proposes recommendations. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-09
- Authors: Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
- Date: 2021-09
- Subjects: Small business , Business enterprises , Business failures--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/20328 , vital:45655
- Description: Small to Medium sized Enterprises (SMEs) play an essential role and can be described as the crucial bread and butter of the South African economy. They have the potential to create employment and skills development opportunities pertinent for sustainable economic growth. The unfortunate part is that South African Small to Medium sized Enterprises have the lowest survival rates in the world, resulting in high rates of business failure and job losses. This is because the South African economy does not favour SMEs, which are often burdened with structural hurdles including access to funding, lack of access to markets, inadequate skills, uncompetitive regulatory frameworks and technological disruptions. A developing economy such as South Africa cannot grow if companies facing financial difficulty are constantly liquidated. This is because the liquidation system does not offer companies an opportunity to restructure and possibly function within the context of raised concerns. In order to facilitate sustainable SMEs growth, the legislature has come up with statutory mechanisms to support SMEs and save them from total liquidation. Most recently, the Companies Act 71 of 2008 Chapter 6 introduces a business rescue mechanism applicable to all business structures established under the Act. The purpose of business rescue is to provide companies in financial distress with opportunities to reorganise, strategize and come up with useful corporate reorganisation measures which are useful and efficient in saving the financially distressed company and possibly yielding a better return for the creditors than would have been the case if the company was liquidated. This new enactment is seen as both an improvement and necessary reform from its predecessor, judicial administration which has widely been condemned as a failure. However, despite this improvement, the application of the current business provisions to SMEs is questionable. Although Chapter 6 of the Act makes provision for SMEs, it also presents a number of stumbling blocks, including the fact that services of business rescue practitioners are out of reach for most SMEs in South Africa. The purpose of this study is to consider challenges faced by SMEs in the practical application of the current business rescue provisions. This study further emphasizes the importance of South African SMEs, whilst looking at their challenges and how the Companies Act 71 of 2008 provisions, regarding business rescue, assists SMEs. The study looks at the impediments of certain provisions of business rescue and proposes recommendations. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-09
The adoption of the twin peaks model in the regulation of South African financial markets : a comparative analysis.
- Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Authors: Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Date: 2021-09
- Subjects: Financial services industry , Financial services industry--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/21278 , vital:48175
- Description: Over two decades ago, a number of countries have changed their financial regulatory models. The growing complexity of financial products, the increasing challenge of regulating large financial conglomerates, and the repercussions of the 2008 Global Financial Crisis, amongst other factors, have made regulatory reform a key priority for many economies. A move towards the Twin Peaks model of financial regulation has been one of the trends in recent years. This model sees regulation split into two broad functions which are market conduct regulation and prudential regulation. South Africa adopted the Twin Peaks financial regulatory model in 2017 as a way of strengthening its financial regulatory model. By adopting the Twin Peaks model, South Africa has become the eighth and the first developing country to adopt the financial regulatory model. The adoption of the Twin Peaks financial regulatory model in South Africa was mainly inspired by the effects of the 2008 Global Financial Crisis. This study undertakes a comparison of the Twin Peaks model structure in South Africa with the structure of its counterparts, which are Australia, United Kingdom and the Netherlands. In doing so, the study identifies the strengths and possible weaknesses of the model in South Africa. The study discusses the extent to which the South African Twin Peaks model reflects international experience. The study traces the evolution of the financial markets and its regulation. It also delves into the main models of the regulation of financial services industry including the Twin Peaks model, which is the focus of the study. The rationale of South Africa’s adoption of the Twin Peaks model is also considered. The Twin Peaks model was introduced in South Africa through the enactment of the Financial Sector Regulatory Act. This legislation reveals that South Africa has drawn increasingly on international experience, particularly the structural design and the cooperation and collaboration of the regulators. It also reveals similarities, notable differences as well as characteristics that might be regarded as unique to South Africa. The similarities reveal that the South African Twin Peaks greatly aligns with that of its counterparts. This is exemplified through the cooperation and coordination between the regulators and the relationship between the regulators and the government amongst others. The study explores insights and lessons to South Africa which can be learnt from its counterparts like the need for effective coordination amongst the Twin Peak regulators. Thereafter, the study puts forward recommendations for reform, which can enable the effective implementation of the Twin Peaks financial regulatory architecture. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-09
- Authors: Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- Date: 2021-09
- Subjects: Financial services industry , Financial services industry--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/21278 , vital:48175
- Description: Over two decades ago, a number of countries have changed their financial regulatory models. The growing complexity of financial products, the increasing challenge of regulating large financial conglomerates, and the repercussions of the 2008 Global Financial Crisis, amongst other factors, have made regulatory reform a key priority for many economies. A move towards the Twin Peaks model of financial regulation has been one of the trends in recent years. This model sees regulation split into two broad functions which are market conduct regulation and prudential regulation. South Africa adopted the Twin Peaks financial regulatory model in 2017 as a way of strengthening its financial regulatory model. By adopting the Twin Peaks model, South Africa has become the eighth and the first developing country to adopt the financial regulatory model. The adoption of the Twin Peaks financial regulatory model in South Africa was mainly inspired by the effects of the 2008 Global Financial Crisis. This study undertakes a comparison of the Twin Peaks model structure in South Africa with the structure of its counterparts, which are Australia, United Kingdom and the Netherlands. In doing so, the study identifies the strengths and possible weaknesses of the model in South Africa. The study discusses the extent to which the South African Twin Peaks model reflects international experience. The study traces the evolution of the financial markets and its regulation. It also delves into the main models of the regulation of financial services industry including the Twin Peaks model, which is the focus of the study. The rationale of South Africa’s adoption of the Twin Peaks model is also considered. The Twin Peaks model was introduced in South Africa through the enactment of the Financial Sector Regulatory Act. This legislation reveals that South Africa has drawn increasingly on international experience, particularly the structural design and the cooperation and collaboration of the regulators. It also reveals similarities, notable differences as well as characteristics that might be regarded as unique to South Africa. The similarities reveal that the South African Twin Peaks greatly aligns with that of its counterparts. This is exemplified through the cooperation and coordination between the regulators and the relationship between the regulators and the government amongst others. The study explores insights and lessons to South Africa which can be learnt from its counterparts like the need for effective coordination amongst the Twin Peak regulators. Thereafter, the study puts forward recommendations for reform, which can enable the effective implementation of the Twin Peaks financial regulatory architecture. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
- Full Text:
- Date Issued: 2021-09
The obligation of unmarried biological parents to provide financial support for their children: a contemporary assessment from a children’s rights perspective
- Authors: Obi, Lauretta
- Date: 2021-07
- Subjects: Children's rights , Support (Domestic relations)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22445 , vital:52322
- Description: In South Africa, the compelling task of unmarried biological parents to provide financial support (in the form of paying monthly maintenance) to their children, as a matter of children’s rights, is intended to ensure the children’s economic and psychological well-being both in the present and future. This study seeks, within the private judicial system and socio-economic context, to explore the nature of children’s rights as they pertain to parental financial support and, the responsibilities of unmarried parents to provide financial support for their biological children until they become self-supporting. This is significant as many unmarried parents usually downplay their responsibilities towards ensuring the well-being of their minor children. Section 28 of the South African Constitution of 1996 enshrines it as a duty of parents to fulfil this aspect of their children’s fundamental rights and our courts apply these rules to the letter. The task of providing support to children basically rests with their birth parents as the primary care givers, and in the absence of these parents or, due to their inability, this legal obligation falls on the state. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-07
- Authors: Obi, Lauretta
- Date: 2021-07
- Subjects: Children's rights , Support (Domestic relations)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/22445 , vital:52322
- Description: In South Africa, the compelling task of unmarried biological parents to provide financial support (in the form of paying monthly maintenance) to their children, as a matter of children’s rights, is intended to ensure the children’s economic and psychological well-being both in the present and future. This study seeks, within the private judicial system and socio-economic context, to explore the nature of children’s rights as they pertain to parental financial support and, the responsibilities of unmarried parents to provide financial support for their biological children until they become self-supporting. This is significant as many unmarried parents usually downplay their responsibilities towards ensuring the well-being of their minor children. Section 28 of the South African Constitution of 1996 enshrines it as a duty of parents to fulfil this aspect of their children’s fundamental rights and our courts apply these rules to the letter. The task of providing support to children basically rests with their birth parents as the primary care givers, and in the absence of these parents or, due to their inability, this legal obligation falls on the state. , Thesis (LLM) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-07
Giving effect to the rights of remand detainees
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Africa, Nicole Kristy
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51205 , vital:43216
- Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
National minimum wage : a comparative study between Germany and South Africa
- Authors: Tshete, Vusumzi Victor
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51183 , vital:43227
- Description: This comparative research study attempted to provide the comparative analysis between the Germany’s MiLoG and the South African NMWA. The study has adopted the ILO definition of the Minimum Wage as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by a collective agreement or an individual contract The Desk review was an appropriate data collection method for the present research studies. Desk research refers to secondary data that was collected without fieldwork. This included reviewal of libraries and the internet, that includes Journals; newspapers; clippings; reports; government statistics; dictionaries; books, On-line databases, Internet sources, legislations and case laws. The multiple research questions that will be addressed by the study question involve the regulation of the implementation of the NMW, the effectiveness and efficiency of the implementation of the NMW between South Africa and Germany, the impact of the NMW in addressing inequality, poverty and unemployment or socio-economic challenges, as well the overall role of the NMW in the entire labour between the two countries. The present study conducted a literature review on the historical development of the Minimum Wage in South Africa and Germany, the legislative framework around the Minimum Wage in both countries. The literature review also covered the impact of NMW on poverty alleviation and Wage inequalities. The literature further covered, the differences between the implementation of the MiLoG in the case of Germany and the NMWA in the case of South Africa. The literature also covered adjusting amendment and monitoring compliance including the best practices. The findings of the study is that the overarching purpose of introducing a NMW had multi- faceted purpose function such as of transforming the country’s inordinately unequal wage structure while at the same time redressing the inherent poverty, inequalities and transformation of the unequal wage structures both in South Africa and Germany. The Minimum Wage is implemented to prevent workers from earning very low wages. In both 3 countries the Minimum Wage is backed by the legislative framework. Processes to measure and enforce compliance are prevalent in both countries; however, the study found that it is very sophisticated to estimate the exact extent of non-compliance. The study further revealed that the effectiveness of Minimum Wages was seen to depend entirely on their policy design, implementation, and adoption as well as compliance measures. The success of the Minimum Wage solely depend on the compliance rate by employers, hence the study recommends that the New Minimum Wage legislation needs to ensure higher rates of compliance. The effective Minimum Wage should put measures in place to ensure that the compliance enforcement measures are practically implemented. A room still exists for both countries to mitigate wage inequalities that will benefit mostly the vulnerable employees. The study revealed that the NMW Commission needs to be capacitated with resources. A need of recruiting highly qualified inspectors was identified in order to strengthen the process of monitoring and ensuring compliance. The study further revealed that the appropriate Minimum Wage needs a collaborative participation of all stakeholders such as employers, the state, employees, trade unions, employer’s organization, bargaining councils, the member of public in order to achieve its professed mandate. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Tshete, Vusumzi Victor
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51183 , vital:43227
- Description: This comparative research study attempted to provide the comparative analysis between the Germany’s MiLoG and the South African NMWA. The study has adopted the ILO definition of the Minimum Wage as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by a collective agreement or an individual contract The Desk review was an appropriate data collection method for the present research studies. Desk research refers to secondary data that was collected without fieldwork. This included reviewal of libraries and the internet, that includes Journals; newspapers; clippings; reports; government statistics; dictionaries; books, On-line databases, Internet sources, legislations and case laws. The multiple research questions that will be addressed by the study question involve the regulation of the implementation of the NMW, the effectiveness and efficiency of the implementation of the NMW between South Africa and Germany, the impact of the NMW in addressing inequality, poverty and unemployment or socio-economic challenges, as well the overall role of the NMW in the entire labour between the two countries. The present study conducted a literature review on the historical development of the Minimum Wage in South Africa and Germany, the legislative framework around the Minimum Wage in both countries. The literature review also covered the impact of NMW on poverty alleviation and Wage inequalities. The literature further covered, the differences between the implementation of the MiLoG in the case of Germany and the NMWA in the case of South Africa. The literature also covered adjusting amendment and monitoring compliance including the best practices. The findings of the study is that the overarching purpose of introducing a NMW had multi- faceted purpose function such as of transforming the country’s inordinately unequal wage structure while at the same time redressing the inherent poverty, inequalities and transformation of the unequal wage structures both in South Africa and Germany. The Minimum Wage is implemented to prevent workers from earning very low wages. In both 3 countries the Minimum Wage is backed by the legislative framework. Processes to measure and enforce compliance are prevalent in both countries; however, the study found that it is very sophisticated to estimate the exact extent of non-compliance. The study further revealed that the effectiveness of Minimum Wages was seen to depend entirely on their policy design, implementation, and adoption as well as compliance measures. The success of the Minimum Wage solely depend on the compliance rate by employers, hence the study recommends that the New Minimum Wage legislation needs to ensure higher rates of compliance. The effective Minimum Wage should put measures in place to ensure that the compliance enforcement measures are practically implemented. A room still exists for both countries to mitigate wage inequalities that will benefit mostly the vulnerable employees. The study revealed that the NMW Commission needs to be capacitated with resources. A need of recruiting highly qualified inspectors was identified in order to strengthen the process of monitoring and ensuring compliance. The study further revealed that the appropriate Minimum Wage needs a collaborative participation of all stakeholders such as employers, the state, employees, trade unions, employer’s organization, bargaining councils, the member of public in order to achieve its professed mandate. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
- Full Text: false
- Date Issued: 2021-04
Presidential accountability for cabinet appointments in South Africa
- Authors: Phorego, Molefhi Solomon
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Executive power--South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/51212 , vital:43228
- Description: The President’s power to appoint cabinet members in South Africa constitutes an essential part of the country’s constitutional framework. It is a discretionary power exercised by the President in his capacity as Head of State bestowed on him by the Constitution, which underpins cabinet appointments.The underlying debates in relation to the President’s power to make cabinet appointments lie between justiciability and non-justiciability. In this respect, there are two schools of thought regarding the question whether the exercise of such a power may be the subject of a judicial inquiry, and if so, to what extent. This thesis provides insight into the nature and origin of the President’s power to appoint cabinet members. It also delves deeply into issues raised by the doctrine of separation of powers surrounding the exercise of this power. The core focus of the thesis is on the extent to which the President can be held accountable for making cabinet appointments. The main argument advanced is that because South Africa is a country founded on the principles of constitutional supremacy and the rule of law, every exercise of public power should be subject to the Constitution, including the President’s power to appoint cabinet members. The determination of whether public power is in line with the dictates of the Constitution calls for an independent judiciary, with the power to rule on any aspect of societal disputes. In pursuit of the above, the thesis analyses the constitutional provisions and case law relevant to the President’s powers as Head of State. The research highlights, amongst others, the President’s duty to give reasons for cabinet appointments. On this point it is submitted that the President does have the constitutional obligation to give reasons for cabinet appointments. Comparisons with other jurisdictions on cabinet appointment processes and oversight mechanisms regarding the exercise of that power form the backdrop against which recommendations are made in the thesis. Proposals are advanced for increased legislative oversight in cabinet appointments. Such oversight should focus on inter alia, the President’s duty to furnish reasons for cabinet appointments. The thesis also proposes a constitutional framework in terms of which Parliament plays a role in the selection of appointees to cabinet. The rationale behind this recommendation is the minimising of instances in which the judiciary is accused of overreaching on the powers of the political organs of government. The courts should, however, still retain the power to pronounce whether both the President and Parliament have fulfilled their relevant constitutional obligations in relation to the process of cabinet appointments. , Thesis (PhD) -- Faculty of Law, Public Law, 2021
- Full Text:
- Date Issued: 2021-04
- Authors: Phorego, Molefhi Solomon
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Executive power--South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/51212 , vital:43228
- Description: The President’s power to appoint cabinet members in South Africa constitutes an essential part of the country’s constitutional framework. It is a discretionary power exercised by the President in his capacity as Head of State bestowed on him by the Constitution, which underpins cabinet appointments.The underlying debates in relation to the President’s power to make cabinet appointments lie between justiciability and non-justiciability. In this respect, there are two schools of thought regarding the question whether the exercise of such a power may be the subject of a judicial inquiry, and if so, to what extent. This thesis provides insight into the nature and origin of the President’s power to appoint cabinet members. It also delves deeply into issues raised by the doctrine of separation of powers surrounding the exercise of this power. The core focus of the thesis is on the extent to which the President can be held accountable for making cabinet appointments. The main argument advanced is that because South Africa is a country founded on the principles of constitutional supremacy and the rule of law, every exercise of public power should be subject to the Constitution, including the President’s power to appoint cabinet members. The determination of whether public power is in line with the dictates of the Constitution calls for an independent judiciary, with the power to rule on any aspect of societal disputes. In pursuit of the above, the thesis analyses the constitutional provisions and case law relevant to the President’s powers as Head of State. The research highlights, amongst others, the President’s duty to give reasons for cabinet appointments. On this point it is submitted that the President does have the constitutional obligation to give reasons for cabinet appointments. Comparisons with other jurisdictions on cabinet appointment processes and oversight mechanisms regarding the exercise of that power form the backdrop against which recommendations are made in the thesis. Proposals are advanced for increased legislative oversight in cabinet appointments. Such oversight should focus on inter alia, the President’s duty to furnish reasons for cabinet appointments. The thesis also proposes a constitutional framework in terms of which Parliament plays a role in the selection of appointees to cabinet. The rationale behind this recommendation is the minimising of instances in which the judiciary is accused of overreaching on the powers of the political organs of government. The courts should, however, still retain the power to pronounce whether both the President and Parliament have fulfilled their relevant constitutional obligations in relation to the process of cabinet appointments. , Thesis (PhD) -- Faculty of Law, Public Law, 2021
- Full Text:
- Date Issued: 2021-04
Prospect of an adquisitorial criminal justice system
- Authors: Mpofu, Mputumi
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Bail--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51186 , vital:43231
- Description: Bail does not cease to be a mind boggling issue as it is challenging our courts on daily basis, hence the need for this research. The tendency of confusing on the role of presiding officers in our legal fraternity is so far as bail proceedings is concerned is growing by the day. The seems to be a tug of war between prosecutors and attorneys with regard to granting of bail for the arrested persons, which leads to judicial officers having to sit for bail applications. Some of these challenges are as a result of interpretation of legislation that governs the issue of bail which is primarily peremptory in nature. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mpofu, Mputumi
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Bail--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51186 , vital:43231
- Description: Bail does not cease to be a mind boggling issue as it is challenging our courts on daily basis, hence the need for this research. The tendency of confusing on the role of presiding officers in our legal fraternity is so far as bail proceedings is concerned is growing by the day. The seems to be a tug of war between prosecutors and attorneys with regard to granting of bail for the arrested persons, which leads to judicial officers having to sit for bail applications. Some of these challenges are as a result of interpretation of legislation that governs the issue of bail which is primarily peremptory in nature. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
Review of the rehabilitation and integration of offenders
- Authors: Darries, Share-Leigh
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Criminals--Rehabilitation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51199 , vital:43219
- Description: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones – and South Africa treated its imprisoned African citizens like animals”.1 The constitutional mandate to ensure the successful rehabilitation and reintegration of offenders into society, upon eventual release falls on the South African Department of Correctional Services (DCS).2 In terms of this mandate, the Department is encumbered with the responsibility to develop programmes which not only addresses criminal conduct but results in the eventual drop of recidivism rates.3 Notwithstanding the Department’s inordinate efforts to discharge its constitutional mandate, recidivism rates continue to be on the rise.4 Built to digress from innate retributive traditions and the concept of punishment, the Department of Correctional Services proffered to alter our realities through the creation of an environment which essentially births different behaviours.5 A task rendered unattainable, as inordinate efforts become frustrated by the realities of prisons and the myth of rehabilitation. Despite having one of the most progressive criminal justice systems in the world, obstinate challenges in South African prisons and an overwhelming prison population make managing and translating its policies into practice all the more difficult.6 With high crime and recidivism rates inundating an already saturated criminal justice 1 Mandela Long Walk to Freedom: The Autobiography of Nelson Mandela (1994) 174-175. 2 Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” 2019 12 African Journal of Criminology and Justice Studies 21 21. 3 Ibid. 4 Ibid. 5 Department of Correctional Services “White Paper on Corrections in South Africa” (November 2004) (Republic of South Africa, Minister of Correctional Services)” http://wwww.dcs.gov.za/wpcontent/uploads/2016/08/WHITE-PAPER-8.pdf (accessed 2019-05-6) 5; Wainio “Inside the World’s Toughest Prisons season 3 premiere recap: Costa Rica: Prison on a Knife-Edge” https://www.google.co.za/amp/s/showsnob.com/2018/12/24/inside-the-worlds-toughest-prisonsseason-3-premiere/amp (accessed 2019-05-6). 6 McAree “Prisoner Rehabilitation in South Africa: A case study of Phoenix Zululand’s work in Eshowe Correctional Facilities” 2011 School for International Training 7. ix system, and exposure of minor offenders to hardened criminals become all the more common,7 the vision of translating every offender who walks through the prison gate into corrigible and law-abiding citizens8 become a far-kept dream. Instead, South African prisons become nothing but breeding grounds of criminality, 9 and temporary vessels of human right violations, as an inmates try to come to terms with the fact that their eventual release into society is met with ostracization, destabilized community relations and collateral consequences.10 Since offenders are usually detained for long periods on remand, prisons are innately prevented from becoming correctional centers despite this being a stated aim in the White Paper on Corrections.11 Against this backdrop, the researcher proffers to broaden the perpetual desire to construct a transformed and developed system; one which charts a course from innate retributive traditions to one which births rehabilitated offenders into society. Mindful of the obstinate penal system which undeniably perpetuates colonial structures through dichotomization, this treatise offers an altered reality, a system which respects and promotes the values and rights enshrined in the Constitution of the Republic of South Africa.12 , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Darries, Share-Leigh
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Criminals--Rehabilitation--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51199 , vital:43219
- Description: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones – and South Africa treated its imprisoned African citizens like animals”.1 The constitutional mandate to ensure the successful rehabilitation and reintegration of offenders into society, upon eventual release falls on the South African Department of Correctional Services (DCS).2 In terms of this mandate, the Department is encumbered with the responsibility to develop programmes which not only addresses criminal conduct but results in the eventual drop of recidivism rates.3 Notwithstanding the Department’s inordinate efforts to discharge its constitutional mandate, recidivism rates continue to be on the rise.4 Built to digress from innate retributive traditions and the concept of punishment, the Department of Correctional Services proffered to alter our realities through the creation of an environment which essentially births different behaviours.5 A task rendered unattainable, as inordinate efforts become frustrated by the realities of prisons and the myth of rehabilitation. Despite having one of the most progressive criminal justice systems in the world, obstinate challenges in South African prisons and an overwhelming prison population make managing and translating its policies into practice all the more difficult.6 With high crime and recidivism rates inundating an already saturated criminal justice 1 Mandela Long Walk to Freedom: The Autobiography of Nelson Mandela (1994) 174-175. 2 Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” 2019 12 African Journal of Criminology and Justice Studies 21 21. 3 Ibid. 4 Ibid. 5 Department of Correctional Services “White Paper on Corrections in South Africa” (November 2004) (Republic of South Africa, Minister of Correctional Services)” http://wwww.dcs.gov.za/wpcontent/uploads/2016/08/WHITE-PAPER-8.pdf (accessed 2019-05-6) 5; Wainio “Inside the World’s Toughest Prisons season 3 premiere recap: Costa Rica: Prison on a Knife-Edge” https://www.google.co.za/amp/s/showsnob.com/2018/12/24/inside-the-worlds-toughest-prisonsseason-3-premiere/amp (accessed 2019-05-6). 6 McAree “Prisoner Rehabilitation in South Africa: A case study of Phoenix Zululand’s work in Eshowe Correctional Facilities” 2011 School for International Training 7. ix system, and exposure of minor offenders to hardened criminals become all the more common,7 the vision of translating every offender who walks through the prison gate into corrigible and law-abiding citizens8 become a far-kept dream. Instead, South African prisons become nothing but breeding grounds of criminality, 9 and temporary vessels of human right violations, as an inmates try to come to terms with the fact that their eventual release into society is met with ostracization, destabilized community relations and collateral consequences.10 Since offenders are usually detained for long periods on remand, prisons are innately prevented from becoming correctional centers despite this being a stated aim in the White Paper on Corrections.11 Against this backdrop, the researcher proffers to broaden the perpetual desire to construct a transformed and developed system; one which charts a course from innate retributive traditions to one which births rehabilitated offenders into society. Mindful of the obstinate penal system which undeniably perpetuates colonial structures through dichotomization, this treatise offers an altered reality, a system which respects and promotes the values and rights enshrined in the Constitution of the Republic of South Africa.12 , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
The application of the doctrine of common purpose to the joint possession of firearms
- Authors: Mnono, Zimbini
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51197 , vital:43225
- Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04
- Authors: Mnono, Zimbini
- Date: 2021-04
- Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/51197 , vital:43225
- Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
- Full Text: false
- Date Issued: 2021-04