Racism and law : implementing the right to equality in selected South African equality courts
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
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- Date Issued: 2009
Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
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- Date Issued: 2008
Aspects of the sentencing process in child sexual abuse cases
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
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- Date Issued: 2006
Justifiability as grounds for the review of labour arbitration proceedings
- Authors: Young, Kirsty Leigh
- Date: 2004
- Subjects: South Africa. Commission for Conciliation, Mediation and Arbitration Mediation and conciliation, Industrial -- South Africa Arbitration, Industrial -- South Africa Arbitration, Industrial -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3666 , http://hdl.handle.net/10962/d1003070
- Description: This thesis focuses on the review of labour arbitration awards given under the auspices of the following bodies: the Commission for Conciliation, Mediation and Arbitration ("CCMA"), bargaining councils, statutory councils, accredited private agencies and private arbitration tribunals. The general grounds of review applicable to the arbitration awards of each body are set out. Against this background, the case of Carephone (Pty) Ltd v Marcus NO & Others (1998) 19 ILJ 1425 (LAC) is analysed and the principles pertaining to the justifiability test are clarified. The judicial rationale for the application of the test to CCMA arbitration proceedings and criticisms of the test are then examined. Currently the justifiability test applies in the review of CCMA proceedings only, so the judicial reasoning for the rejection of justifiability as a ground for private arbitration review is examined. Three approaches are suggested for the application of the justifiability test in private arbitration review. First it is proposed that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Failing the acceptance of this approach, the second submission is that arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. A third suggestion is that the law should be developed by attaching an ex lege term to all arbitration agreements requiring arbitrators to give justifiable awards. In the final chapter, the requirement of justifiability in awards given under the auspices of collective bargaining agents and accredited private agencies highlights the incongruity in applying the justifiability test in CCMA arbitration review and in rejecting this test in private arbitration review.
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- Date Issued: 2004
The doctrine of duress in the law of contract and unjustified enrichment in South Africa
- Authors: Glover, Graham Brian
- Date: 2004
- Subjects: Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3672 , http://hdl.handle.net/10962/d1003187 , Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Description: This thesis analyses the doctrine of duress and its application in the law of contract and unjustified enrichment in South Africa. Following an initial examination of the historical development of the doctrine from its roots in Roman and Roman-Dutch law, the study focuses on the current legal position in the two areas of law under review, identifies the substantive and formal deficiencies in the current approach, and suggests, using comparative authorities, how the law might be developed. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test for duress is then proposed: one that concentrates on the question whether an illegitimate threat was made, which induced a contract in that it left the other person no reasonable choice but to succumb to the proposal. Additionally, the need for South African contract law to recognise and deal with cases of economic duress is emphasised. The study then shifts to an examination of the position in situations where non-contractual performances have occurred under duress: cases that are decided in terms of the principles of the law of unjustified enrichment. The current position is reviewed, and it is shown that the approach to duress cases is substantially different to the approach that applies in contract. An attempt is made to reconcile this problem. From a structural perspective, the nature and application of the relevant enrichment action where a non-contractual performance is made under duress (the condictio indebiti) is also investigated, in the light of approaches to enrichment adopted in both Germany and England, in an attempt to make better sense of this enrichment action in the South African context. The study closes with an analysis of the various contractual, delictual and enrichment remedies that are available once a case of duress has been proved.
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- Date Issued: 2004
The operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws
- Authors: Makobe, Melanchton Phillip Malepe
- Date: 2001
- Subjects: Letters of credit Conflict of laws Fraud
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3710 , http://hdl.handle.net/10962/d1007281
- Description: The thesis covers aspects of the law relating to letters of credit. It deals with the operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws. According to the principle of independence, banks must make payment in terms of the letter of credit irrespective of any dispute that may exist between the buyer and the seller in an underlying contract or other contracts. Although the principle of independence is clearly established, it is not absolute. An exception occurs in the case of fraud. Thus, if the seller has committed fraud, such as tendering forged documents, the buyer can instruct the bank not to make payment in terms of the credit. If the bank refuses to dishonour the letter of credit, the buyer can apply to a court to interdict the bank from making payment. In South African law the buyer must establish that the seller was party to fraud in relation to the documents presented to the bank for payment before the court can grant an interdict. This thesis also examines the standard of proof of fraud required in letters of credit transactions and proposes a standard of proof which will not unduly favour the seller whose good faith is in dispute. The fast growing technology of computers and telecommunications is rapidly changing the methods of transacting business by paper documentation and letter of credit transactions are no exception. At present the buyer can apply to the bank to issue a letter of credit through the computer and banks also communicate letter of credit transactions through computer networks. However, the beneficiary still has to present documents to the bank for payment in paper form. It is proposed that the Uniform Custom and Practice For Documentary Credits (UCP) be amended to provide for fully computerised letters of credit transactions. Another objective of the thesis is to examine the doctrine of strict compliance. In terms of the doctrine of strict compliance documents presented under the credit must comply strictly with the requirements set out in the credit. If banks are satisfied that the documents presented by the seller strictly conform with the requirements of the credit they are obliged to make payment as required by the credit. It is proposed that the doctrine of strict compliance should not be applied strictly. In other words, the banks should make payment in terms of the credit if the discrepancy in the documents is trivial. The thesis also covers conflict of laws issues. As the UCP does not have rules dealing with conflict of laws, most jurisdictions have developed their own rules to be applied by the courts in cases of conflict of laws. The thesis examines the different rules of conflict of laws as developed and practiced by different jurisdictions.
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- Date Issued: 2001