The dissipation of marital assets pending a divorce order in South Africa: a proposal for reform
- Mahlangu, Busisiwe Hlophane Maria
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
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The obligation of South Africa to provide social security to refugees and asylum seekers during the COVID-19 pandemic
- Authors: Dekeda, Awethu Zethu
- Date: 2023-10-13
- Subjects: Social security Law and legislation South Africa , Human rights South Africa , Refugees Government policy South Africa , Political refugees South Africa , COVID-19 Pandemic, 2020- Influence
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424119 , vital:72125
- Description: Covid-19 a novel pandemic, has wreaked havoc globally, threatening the livelihoods of all, including refugees and asylum seekers. Like all other countries globally, South Africa has gone to great lengths to mitigate the challenges that this pandemic has caused. However, it is far from clear whether these responses are according due regard to the rights of some of the most vulnerable in society, amongst which are refugees. This thesis deals with South Africa’s obligation to provide social security to refugees during the Covid-19 pandemic. It specifically assesses whether South Africa's responses to the Covid-19 pandemic were in adherence to fundamental refugee law principles relevant to the protection of refugees. The study commences with a general introduction, followed by an analysis of the international human rights and refugee law framework relevant to protection of refugees. This framework is used to assess South Africa’s responses. Subsequently, the discussion delves into South Africa’s own national framework on social security. Using the standards identified in both the national and international frameworks, the thesis then proceeds to measure South Africa’s Covid-19 related responses regarding social security to resolve the issue of whether South Africa adhered to these standards in as far the protection of refugees’ right to social security is concerned. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Dekeda, Awethu Zethu
- Date: 2023-10-13
- Subjects: Social security Law and legislation South Africa , Human rights South Africa , Refugees Government policy South Africa , Political refugees South Africa , COVID-19 Pandemic, 2020- Influence
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424119 , vital:72125
- Description: Covid-19 a novel pandemic, has wreaked havoc globally, threatening the livelihoods of all, including refugees and asylum seekers. Like all other countries globally, South Africa has gone to great lengths to mitigate the challenges that this pandemic has caused. However, it is far from clear whether these responses are according due regard to the rights of some of the most vulnerable in society, amongst which are refugees. This thesis deals with South Africa’s obligation to provide social security to refugees during the Covid-19 pandemic. It specifically assesses whether South Africa's responses to the Covid-19 pandemic were in adherence to fundamental refugee law principles relevant to the protection of refugees. The study commences with a general introduction, followed by an analysis of the international human rights and refugee law framework relevant to protection of refugees. This framework is used to assess South Africa’s responses. Subsequently, the discussion delves into South Africa’s own national framework on social security. Using the standards identified in both the national and international frameworks, the thesis then proceeds to measure South Africa’s Covid-19 related responses regarding social security to resolve the issue of whether South Africa adhered to these standards in as far the protection of refugees’ right to social security is concerned. , Thesis (LLM) -- Faculty of Law, Law, 2023
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The Role of the courts in the interpretation and implementation of the Right to Basic Education in Section 29(1)(a) of the South African Constitution
- Authors: Ngubane, Kwanele Nhlanhla
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424141 , vital:72127
- Description: The right to education in section 29(1)(a) of the Constitution was meant to signal a break between an education system divided along racial lines, and a new democratic education system based on equity, equality, and opportunity for all learners. In reality, the South African education system still remains deeply divided along racial lines, with poor, mostly black learners, being under-resourced by the state, while their richer, mostly white, counterparts are being taught in schools that have access to all the resources necessary to realise the right to basic education. As a result, the right to education in section 29(1)(a) of the Constitution has been heavily debated, and between 2010 and 2022, the South African courts have often been called on to interpret the right. In the process, a rich jurisprudence has developed on the core content of the right to basic education, with findings by the courts that the right includes an entitlement to a number of educational resources. These include access to school infrastructure, learner-teacher support materials, desks and chairs, scholar transport, teaching and non-teaching staff, and nutrition. This study examines the way South African courts, between 2010 and 2022, have interpreted and implemented the right to basic education to give effect to section 29(1)(a) of the Constitution. While South African courts have historically shied away from interpreting socio-economic rights to contain a minimum core content and have rather opted for a reasonableness approach, the same is not entirely true for section 29(1)(a). As stated above, courts have been willing to find that the right entails a minimum basket of goods and services without which the right cannot be realised. By examining some of the most important education rights cases during this period, the study proposes that there are five factors that have guided the courts’ interpretation of the right and has assisted in the courts finding that the right contains a minimum core content. These factors are the historical context of the right to basic education; the textual formulation of the right to basic education in section 29(1)(a) of the Constitution; the interrelatedness of the right to basic education and other rights within the Bill of Rights; subsidiary education policies, legislation, and regulations, and lastly, the role of international law. This study seeks to consider the extent to which each of these factors have played a role in courts’ interpretation of section 29(1)(a). The study also considers the implementation of these judgments and the role that the courts have played in realising the right to education for learners on ground-level. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Ngubane, Kwanele Nhlanhla
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424141 , vital:72127
- Description: The right to education in section 29(1)(a) of the Constitution was meant to signal a break between an education system divided along racial lines, and a new democratic education system based on equity, equality, and opportunity for all learners. In reality, the South African education system still remains deeply divided along racial lines, with poor, mostly black learners, being under-resourced by the state, while their richer, mostly white, counterparts are being taught in schools that have access to all the resources necessary to realise the right to basic education. As a result, the right to education in section 29(1)(a) of the Constitution has been heavily debated, and between 2010 and 2022, the South African courts have often been called on to interpret the right. In the process, a rich jurisprudence has developed on the core content of the right to basic education, with findings by the courts that the right includes an entitlement to a number of educational resources. These include access to school infrastructure, learner-teacher support materials, desks and chairs, scholar transport, teaching and non-teaching staff, and nutrition. This study examines the way South African courts, between 2010 and 2022, have interpreted and implemented the right to basic education to give effect to section 29(1)(a) of the Constitution. While South African courts have historically shied away from interpreting socio-economic rights to contain a minimum core content and have rather opted for a reasonableness approach, the same is not entirely true for section 29(1)(a). As stated above, courts have been willing to find that the right entails a minimum basket of goods and services without which the right cannot be realised. By examining some of the most important education rights cases during this period, the study proposes that there are five factors that have guided the courts’ interpretation of the right and has assisted in the courts finding that the right contains a minimum core content. These factors are the historical context of the right to basic education; the textual formulation of the right to basic education in section 29(1)(a) of the Constitution; the interrelatedness of the right to basic education and other rights within the Bill of Rights; subsidiary education policies, legislation, and regulations, and lastly, the role of international law. This study seeks to consider the extent to which each of these factors have played a role in courts’ interpretation of section 29(1)(a). The study also considers the implementation of these judgments and the role that the courts have played in realising the right to education for learners on ground-level. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
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