The Kenya National Human Rights Commission and the promotion, protection and monitoring of socio-economic rights in Kenya
- Khayundi, Francis Bulimo Mapati
- Authors: Khayundi, Francis Bulimo Mapati
- Date: 2018
- Subjects: Kenya Human Rights Commission , Economic rights -- Kenya , Social rights -- Kenya , Kenya -- Economic conditions , Kenya -- Social conditions , Kenya -- Politics and government
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60413 , vital:27777
- Description: The promulgation of the 2010 Constitution of Kenya introduced socio-economic rights (SERs) amid widespread poverty and rising inequality. This study seeks to answer the overarching question, what role can the Kenya National Commission on Human Rights (KNCHR) play in promoting, protecting and monitoring SERs in Kenya? Further research questions included whether the KNCHR has the requisite powers to perform its mandate and what lessons could be learned from the South African context. The research sought to understand how the local context affects the ability of KNCHR to carry out its mandate. Likewise, it analyses some of the contributions KNCHR has made in the promotion and protection of SERs while identifying the challenges the Commission faces in carrying out its mandate. Several methodologies were utilised to answer the research questions above. The methodologies included the doctrinal method, analysis of secondary sources and interviews with key informants. A comparative legal research methodology was also employed, with the SAHRC being used as a case study on how NHRIs can promote, protect and monitor SERs. The findings from the research argue that the Paris Principles provide the minimum guidelines on the establishment of NHRIs. Compliance with these Principles has not necessarily guaranteed the effectives of NHRIs. Any assessment of an NHRI should be based on its performance and legitimacy considering the local factors obtaining within its jurisdiction. The domestic protection and judicial enforcement of human rights in Kenya, though crucial to the realisation of SERs, has been fraught with challenges. These challenges have meant that the realisation of SERs has been curtailed and necessitated complementary institutions for human rights to be realised. Given the country’s constitutional architecture, the KNCHR was one such institution that could complement the role of the judiciary given its wide mandate. With SERs a new feature of the 2010 Constitution, the KNCHR had to find ways to promote SERs in the country considering the local peculiarities such as poverty, a highly political climate and lack of political goodwill from the legislature and executive sometime characterised by open hostility. These challenges and the new nature of these rights called for a comparative study with the SAHRC given some similarities between the two jurisdictions. The SAHRC provided valuable lessons having had more experience in dealing with SERs while navigating similar challenges the KNCHR faced or might face. The findings of the research prompted recommendations directed at the KNCHR and other stakeholders, specifically the legislature and executive on how to address the challenges curtailing the performance of the KNCHR in general and particularly ways in which the Commission could go about in promoting, protecting and monitoring SERs.
- Full Text:
- Authors: Khayundi, Francis Bulimo Mapati
- Date: 2018
- Subjects: Kenya Human Rights Commission , Economic rights -- Kenya , Social rights -- Kenya , Kenya -- Economic conditions , Kenya -- Social conditions , Kenya -- Politics and government
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60413 , vital:27777
- Description: The promulgation of the 2010 Constitution of Kenya introduced socio-economic rights (SERs) amid widespread poverty and rising inequality. This study seeks to answer the overarching question, what role can the Kenya National Commission on Human Rights (KNCHR) play in promoting, protecting and monitoring SERs in Kenya? Further research questions included whether the KNCHR has the requisite powers to perform its mandate and what lessons could be learned from the South African context. The research sought to understand how the local context affects the ability of KNCHR to carry out its mandate. Likewise, it analyses some of the contributions KNCHR has made in the promotion and protection of SERs while identifying the challenges the Commission faces in carrying out its mandate. Several methodologies were utilised to answer the research questions above. The methodologies included the doctrinal method, analysis of secondary sources and interviews with key informants. A comparative legal research methodology was also employed, with the SAHRC being used as a case study on how NHRIs can promote, protect and monitor SERs. The findings from the research argue that the Paris Principles provide the minimum guidelines on the establishment of NHRIs. Compliance with these Principles has not necessarily guaranteed the effectives of NHRIs. Any assessment of an NHRI should be based on its performance and legitimacy considering the local factors obtaining within its jurisdiction. The domestic protection and judicial enforcement of human rights in Kenya, though crucial to the realisation of SERs, has been fraught with challenges. These challenges have meant that the realisation of SERs has been curtailed and necessitated complementary institutions for human rights to be realised. Given the country’s constitutional architecture, the KNCHR was one such institution that could complement the role of the judiciary given its wide mandate. With SERs a new feature of the 2010 Constitution, the KNCHR had to find ways to promote SERs in the country considering the local peculiarities such as poverty, a highly political climate and lack of political goodwill from the legislature and executive sometime characterised by open hostility. These challenges and the new nature of these rights called for a comparative study with the SAHRC given some similarities between the two jurisdictions. The SAHRC provided valuable lessons having had more experience in dealing with SERs while navigating similar challenges the KNCHR faced or might face. The findings of the research prompted recommendations directed at the KNCHR and other stakeholders, specifically the legislature and executive on how to address the challenges curtailing the performance of the KNCHR in general and particularly ways in which the Commission could go about in promoting, protecting and monitoring SERs.
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The regulation of subsidies and regional trade among developing countries in the multilateral trading system: the case of export processing zones in Malawi
- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
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- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
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Help or hindrance? a critical analysis of the agreement on sanitary and phytosanitary measures, and its effects on developing countries
- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
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- Authors: Waterworth, Tayla
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7090 , vital:21216
- Description: WHILE it is accepted that the category of "developing country" is a broad one, it can nevertheless be acknowledged that the countries which fall within this categorisation share several common features. Such common features include their lack of financial resources and scientific capacity, and their reliance on trade in primary agricultural goods. The Agreement on Sanitary and Phytosanitary Measures was originally created to regulate trade in primary agricultural goods, and so its provisions are of great significance to developing countries. In its Preamble the Agreement acknowledges both the unique circumstances of developing countries and its desire to assist them in entering into and expanding within the international trading markets. As part of this endeavour, several provisions were included in the Agreement which purport to protect and provide for the interests of developing countries. In its inception, its Preamble, and the very nature of its content, the Agreement shows a desire to assist developing countries wherever possible. Unfortunately, a close analysis of the provisions of the Agreement shows that this desire has not been fulfilled. Many of the provisions of the Agreement are heavily skewed toward the interests of importing Members, often at the expense of developing Members - particularly those that export primary agricultural goods. Even the provisions of the Agreement which purport to provide protection and special and differential treatment specifically for developing countries frequently fall short, either as a result of ambiguous phrasing or poor textual interpretation by the dispute settlement bodies of the World Trade Organization. As a result, there exists a potential within the Agreement to have a significant detrimental impact on the international trading opportunities of exporting developing countries. In this thesis I analyse the provisions of the Agreement to determine where, why and how they are likely to have, or are having, a detrimental impact on developing countries (particularly exporting developing countries). After identifying these problems I examine and discuss several potential solutions and how they may be implemented to minimise - or even remove - the negative impact on developing countries and their international trading markets.
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Sports and competition law in South Africa: the need to account for the uniqueness of sport when applying the competition Act 89 of 1998 to the sports industry
- Authors: Sun, Huajun
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7102 , vital:21217
- Description: Regulation of sport as an economic activity has become increasingly prevalent in a number of foreign jurisdictions. This thesis considers the applicability of competition law to the sports industry from a South African perspective. Although the Competition Act 89 of 1998 is yet to be applied in the context of organisation of professional sport, the sector is not free from the scrutiny of competition law authorities. It is necessary to subject sports organisers and governing bodies to competition law in order to ensure that their administrative powers, which effectively place them in positions of market dominance, are not misused for their own commercial interests. On the other hand, the unique characteristics of sports should also be taken into account when applying competition law to the sector. In particular, it should be noted that sporting activities are not purely economic in nature, and that they are also conducted in order to achieve various social objectives. This thesis examines foreign jurisprudence that have dealt with the relevance of purely sporting justifications under competition law, and conclude that South Africa law should take into account the unique nature of sport when determining whether a conduct should be per se prohibited under the Competition Act, as well as when the rule-of-reason enquiry is conducted. This would require an amendment to the Act, a draft of which is proposed in this thesis. Finally, the proposed approach is applied in the context of the player transfer rules in football, in order to highlight problematic aspects of the transfer system even when considered in light of the unique nature of sports.
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- Authors: Sun, Huajun
- Date: 2017
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7102 , vital:21217
- Description: Regulation of sport as an economic activity has become increasingly prevalent in a number of foreign jurisdictions. This thesis considers the applicability of competition law to the sports industry from a South African perspective. Although the Competition Act 89 of 1998 is yet to be applied in the context of organisation of professional sport, the sector is not free from the scrutiny of competition law authorities. It is necessary to subject sports organisers and governing bodies to competition law in order to ensure that their administrative powers, which effectively place them in positions of market dominance, are not misused for their own commercial interests. On the other hand, the unique characteristics of sports should also be taken into account when applying competition law to the sector. In particular, it should be noted that sporting activities are not purely economic in nature, and that they are also conducted in order to achieve various social objectives. This thesis examines foreign jurisprudence that have dealt with the relevance of purely sporting justifications under competition law, and conclude that South Africa law should take into account the unique nature of sport when determining whether a conduct should be per se prohibited under the Competition Act, as well as when the rule-of-reason enquiry is conducted. This would require an amendment to the Act, a draft of which is proposed in this thesis. Finally, the proposed approach is applied in the context of the player transfer rules in football, in order to highlight problematic aspects of the transfer system even when considered in light of the unique nature of sports.
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The principle of distinction and modern armed conflicts: a critical analysis of the protection regime based on the distinction between civilians and combatants under international humanitarian law
- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
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- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
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Class actions as a means of enhancing access to justice in South Africa
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
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- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
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Determining the competency of children with developmental delays to testify in criminal trials
- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
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- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
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Head of state immunity under the Rome statute of the International Criminal Court: an analysis of the contemporary legal issues and the African Union’s response to the prosecution of African heads of state
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
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Combating corruption while respecting human rights : a critical study of the non-conviction based assets recovery mechanism in Kenya and South Africa
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
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- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
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The principle of complementarity : a critical analysis of Article 17 of the Rome Statute from an African perspective
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
- Full Text:
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
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An analysis of selected World Trade Organisation agreements to determine whether they discriminate unfairly against developing economices
- Authors: Grimett, Leticia Anthea
- Date: 2013-07-29
- Subjects: World Trade Organization Foreign trade regulation General Agreement on Tariffs and Trade (Organization) Free trade -- Developing countries Foreign trade regulation -- Developing countries Competition, Unfair -- Developing countries
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3718 , http://hdl.handle.net/10962/d1008368
- Description: The focus of this thesis is the question whether or not the WTO discriminates unfairly against developing economies. In the absence of a test of guidelines for detennining unfairness or fairness of WTO provisions or Agreements has been drawn up using welfare economic and constitutional law principles as a foundation. Unfairness is therefore determined by asking whether the provisions of each Agreement are rational, proportional, efficient and whether they prevent the abuse of power amongst states. In addition, the economic effects of the provisions of the selected Agreements have been analysed to determine whether the relevant provisions are welfare enhancing and conclusive to promoting growth and development within developing economies. The Agreements chosed for analysis are the Agreements on Trade-related Investment Measures (TRIMS), Trade-related Intellectual Property (TRIPS), Agriculture and Services (GATS). The dispute settlement and negotiating process, labour standards and the impact of decreasing most-favoured nation rates on developing economy competitiveness is also discussed. Application of the test has shown that the WTO provisions do not reflect the interests of all members. Even though most member states are developing economies, the3 Agreements constantly cater foe developed country concerns and interests. Where provision is made for developing country interests, it is the LDC's who are favoured, with nonnal developing economies being bound by the same provisions as the developed economies. A fonnal, as opposed to a substantive, defmition has been adopted by the WTO, with a result that the process of equality is placed above the outcomes. While concessions have been made to development, members have not gone for enough. A main reason for the imbalance can be attributed to the negotiating process, which is based upon concessionary bargaining and trade-off. Those states with greater economic power are therefore at an advantage as they have the leverage needed to influence the outcomes of negotiations and hence the provisions of the various Agreements. Even with the LDC's, the WTO has been found to discriminate unfairly against developing economies because it does not adequately address developing country concerns. , KMBT_363 , Adobe Acrobat 9.54 Paper Capture Plug-in
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- Authors: Grimett, Leticia Anthea
- Date: 2013-07-29
- Subjects: World Trade Organization Foreign trade regulation General Agreement on Tariffs and Trade (Organization) Free trade -- Developing countries Foreign trade regulation -- Developing countries Competition, Unfair -- Developing countries
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3718 , http://hdl.handle.net/10962/d1008368
- Description: The focus of this thesis is the question whether or not the WTO discriminates unfairly against developing economies. In the absence of a test of guidelines for detennining unfairness or fairness of WTO provisions or Agreements has been drawn up using welfare economic and constitutional law principles as a foundation. Unfairness is therefore determined by asking whether the provisions of each Agreement are rational, proportional, efficient and whether they prevent the abuse of power amongst states. In addition, the economic effects of the provisions of the selected Agreements have been analysed to determine whether the relevant provisions are welfare enhancing and conclusive to promoting growth and development within developing economies. The Agreements chosed for analysis are the Agreements on Trade-related Investment Measures (TRIMS), Trade-related Intellectual Property (TRIPS), Agriculture and Services (GATS). The dispute settlement and negotiating process, labour standards and the impact of decreasing most-favoured nation rates on developing economy competitiveness is also discussed. Application of the test has shown that the WTO provisions do not reflect the interests of all members. Even though most member states are developing economies, the3 Agreements constantly cater foe developed country concerns and interests. Where provision is made for developing country interests, it is the LDC's who are favoured, with nonnal developing economies being bound by the same provisions as the developed economies. A fonnal, as opposed to a substantive, defmition has been adopted by the WTO, with a result that the process of equality is placed above the outcomes. While concessions have been made to development, members have not gone for enough. A main reason for the imbalance can be attributed to the negotiating process, which is based upon concessionary bargaining and trade-off. Those states with greater economic power are therefore at an advantage as they have the leverage needed to influence the outcomes of negotiations and hence the provisions of the various Agreements. Even with the LDC's, the WTO has been found to discriminate unfairly against developing economies because it does not adequately address developing country concerns. , KMBT_363 , Adobe Acrobat 9.54 Paper Capture Plug-in
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A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
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- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
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The application of the Rome Statute of the International Criminal Court to illegal natural resource exploitation in the Congo conflic
- Authors: Tsabora, James
- Date: 2013 , 2013-03-27
- Subjects: International criminal law -- Congo (Democratic Republic) Criminal procedure (International law) Natural resources -- Law and legislation -- Congo (Democratic Republic)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3665 , http://hdl.handle.net/10962/d1002612
- Description: This thesis explores the phenomenon of illegal natural resource exploitation in conflict zones and the application of international criminal law, particularly the Rome Statute of the International Criminal Court to combat the roblem. Contemporary African conflicts, such as the Democratic Republic of Congo conflict explored as a case study herein, have become increasingly distinguishable by the tight connection between war and various forms of illegal natural resource exploitation, particularly targeting valuable and precious mineral resources. With their incidence being highest in Africa, wars funded by illegally exploited natural resources have gradually become one of the greatest threats to regional peace and human security on the African continent. The Congo conflict clearly demonstrated the problematic nature and impact of illegal natural resource exploitation and the widespread human, economic and political costs associated with this phenomenon. This thesis is based on the initial assumption that the quest by conflict actors to profit from war through illegal natural resource exploitation activities is at the centre of the commission of serious human rights violations as well as the complexity and longevity of African conflicts. Developments in international criminal law, culminating in the adoption of the Rome Statute and the establishment of the International Criminal Court, have given impetus to the argument that any group of conflict actors should be subjected to the individual criminal responsibility regime of this legal framework. A further underlying assumption of this thesis is therefore that international criminal law can constrain the acts and conduct defined in this thesis as illegal natural resource exploitation activities since they constitute war crimes under the Rome Statute framework. However, despite illustrating the illegal resource exploitation activities of various state and non-state actors, this thesis is confined to an application of the Rome Statute based international criminal liability regime against members of armed rebel groups involved in such acts. In exploring these issues, this work examines international criminal law institutions and the relevance of international criminal justice in addressing particular phenomena prevalent during African armed conflicts. It further provides the stage to assess the potential of international criminal law in safeguarding natural resources for the benefit of African societies perennially exposed to the depredations of natural resource financed warfare. , Microsoft� Office Word 2007 , Adobe Acrobat 9.53 Paper Capture Plug-in
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- Authors: Tsabora, James
- Date: 2013 , 2013-03-27
- Subjects: International criminal law -- Congo (Democratic Republic) Criminal procedure (International law) Natural resources -- Law and legislation -- Congo (Democratic Republic)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3665 , http://hdl.handle.net/10962/d1002612
- Description: This thesis explores the phenomenon of illegal natural resource exploitation in conflict zones and the application of international criminal law, particularly the Rome Statute of the International Criminal Court to combat the roblem. Contemporary African conflicts, such as the Democratic Republic of Congo conflict explored as a case study herein, have become increasingly distinguishable by the tight connection between war and various forms of illegal natural resource exploitation, particularly targeting valuable and precious mineral resources. With their incidence being highest in Africa, wars funded by illegally exploited natural resources have gradually become one of the greatest threats to regional peace and human security on the African continent. The Congo conflict clearly demonstrated the problematic nature and impact of illegal natural resource exploitation and the widespread human, economic and political costs associated with this phenomenon. This thesis is based on the initial assumption that the quest by conflict actors to profit from war through illegal natural resource exploitation activities is at the centre of the commission of serious human rights violations as well as the complexity and longevity of African conflicts. Developments in international criminal law, culminating in the adoption of the Rome Statute and the establishment of the International Criminal Court, have given impetus to the argument that any group of conflict actors should be subjected to the individual criminal responsibility regime of this legal framework. A further underlying assumption of this thesis is therefore that international criminal law can constrain the acts and conduct defined in this thesis as illegal natural resource exploitation activities since they constitute war crimes under the Rome Statute framework. However, despite illustrating the illegal resource exploitation activities of various state and non-state actors, this thesis is confined to an application of the Rome Statute based international criminal liability regime against members of armed rebel groups involved in such acts. In exploring these issues, this work examines international criminal law institutions and the relevance of international criminal justice in addressing particular phenomena prevalent during African armed conflicts. It further provides the stage to assess the potential of international criminal law in safeguarding natural resources for the benefit of African societies perennially exposed to the depredations of natural resource financed warfare. , Microsoft� Office Word 2007 , Adobe Acrobat 9.53 Paper Capture Plug-in
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The Rotterdam Rules : a South African perspective
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
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- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
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The violence of language : contemporary hate speech and the suitability of legal measures regulating hate speech in South Africa
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
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- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
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Copyright law in the digital environment: DRM systems, anti-circumvention, legislation and user rights
- Authors: Latter, Gareth Paul
- Date: 2012
- Subjects: Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3681 , http://hdl.handle.net/10962/d1003196 , Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Description: This thesis deals with the way in which copyright law is changing in the digital environment and the mechanisms which are facilitating this change. It deals with these issues by analysing the mechanisms of this change, specifically Digital Rights Management (DRM)Systems and anti-circumvention legislation, and the impact which this change is having on the rights of copyright users. The purpose of copyright is to provide an incentive to authors to continue creating while simultaneously providing a public good in allowing the public to use those creations in certain ways. Copyright achieves this purpose by granting both the author and user certain rights. The author is given a limited monopoly over their work in exchange for allowing this work to enter the public sphere and ensuring that users of that work can utilise that work in certain limited ways. The success of copyright thus rests on maintaining the balance between the rights of these parties. The rise of digital technology has created a situation in which copyright content can be easily copied by any party with a Personal Computer and disseminated around the globe instantly via the Internet. In response to these dangers, copyright owners are making use of DRM systems to protect content. DRM systems include various measures of control within its scope. Theses systems allow for copyright owners to control both access and use of content by copyright users. DRM Systems are not foolproof measures of protection however. Technologically sophisticated users are able to circumvent these protection measures. Thus, in order to protect DRM Systems from circumvention, anti-circumvention legislation has been proposed through international treaties and adopted in many countries. The combined effect of these protection measures are open to abuse by copyright owners and serve to curtail the limited rights of copyright users. The end result of this is that the balance which copyright law was created to maintain is disrupted and copyright law no longer fulfils its purpose. This thesis undertakes an analysis of these issues with reference to how these issues affect copyright users in developing countries. This is done with particular reference to possible approaches to this issue in South Africa as South Africa is a signatory to these anti-circumvention treaties.
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- Authors: Latter, Gareth Paul
- Date: 2012
- Subjects: Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3681 , http://hdl.handle.net/10962/d1003196 , Digital rights management , Copyright and electronic data processing , Internet -- Law and legislation , Public domain (Copyright law) , Fair use (Copyright) , Intellectual property , Copyright
- Description: This thesis deals with the way in which copyright law is changing in the digital environment and the mechanisms which are facilitating this change. It deals with these issues by analysing the mechanisms of this change, specifically Digital Rights Management (DRM)Systems and anti-circumvention legislation, and the impact which this change is having on the rights of copyright users. The purpose of copyright is to provide an incentive to authors to continue creating while simultaneously providing a public good in allowing the public to use those creations in certain ways. Copyright achieves this purpose by granting both the author and user certain rights. The author is given a limited monopoly over their work in exchange for allowing this work to enter the public sphere and ensuring that users of that work can utilise that work in certain limited ways. The success of copyright thus rests on maintaining the balance between the rights of these parties. The rise of digital technology has created a situation in which copyright content can be easily copied by any party with a Personal Computer and disseminated around the globe instantly via the Internet. In response to these dangers, copyright owners are making use of DRM systems to protect content. DRM systems include various measures of control within its scope. Theses systems allow for copyright owners to control both access and use of content by copyright users. DRM Systems are not foolproof measures of protection however. Technologically sophisticated users are able to circumvent these protection measures. Thus, in order to protect DRM Systems from circumvention, anti-circumvention legislation has been proposed through international treaties and adopted in many countries. The combined effect of these protection measures are open to abuse by copyright owners and serve to curtail the limited rights of copyright users. The end result of this is that the balance which copyright law was created to maintain is disrupted and copyright law no longer fulfils its purpose. This thesis undertakes an analysis of these issues with reference to how these issues affect copyright users in developing countries. This is done with particular reference to possible approaches to this issue in South Africa as South Africa is a signatory to these anti-circumvention treaties.
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The effects of climate change on the realisation of the right to adequate food in Kenya
- Khayundi, Francis Mapati Bulimo
- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
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- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
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A comparative analysis of the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
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- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
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A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law
- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
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- Authors: Stafford, Rowan Bell
- Date: 2011
- Subjects: Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3695 , http://hdl.handle.net/10962/d1003210 , Trusts and trustees -- South Africa , Equity -- South Africa , Law reform -- South Africa
- Description: This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
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The right to organise: critiquing the role of trade unions in shaping work relations in post-apartheid South Africa
- Authors: Nyathi, Mthokozisi
- Date: 2011
- Subjects: Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3690 , http://hdl.handle.net/10962/d1003205 , Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Description: Organised labour continues to play a prominent role in shaping employment relations in South Africa. The individual worker is powerless and in a weaker bargaining position against his employer. The advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. The trade union movement has made and consolidated significant gains since the advent of democracy. It however faces a plethora of new challenges, such as the negative forces of globalisation, declining membership (often associated with high levels of unemployment and the changing nature of work from standard to atypical employment), the resurfacing of adversarialism in the bargaining process, and numerous shortcomings inherent in forums established to facilitate corporatism. Business is intensifying its calls for investor-friendly policies, which effectively mean a relaxation of labour policies. The trade union movement faces an enormous task of rebuilding confidence and credibility among its members and at the same time showing some commitment to other social actors, government and business, that it is committed to contribute to economic growth and employment creation. The central focus of this thesis will be to highlight the gains made by the trade union movement, the numerous challenges threatening their existence, and how they have attempted to redefine their role in the face of these challenges. It will attempt to offer advice on how trade unions can continue to play a prominent role in shaping relations of work in South Africa. The study begins with a historical overview of trade unionism in South Africa. It then attempts to establish how trade unions have made use of the institution of collective bargaining, the importance of organisational rights to the trade union movement, the effectiveness of industrial action, and the emerging challenges threatening the vibrancy of trade unions. The overall aim is to assess whether the trade union movement is still a force to be reckoned with and its future role in influencing employment relations in South Africa.
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- Authors: Nyathi, Mthokozisi
- Date: 2011
- Subjects: Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3690 , http://hdl.handle.net/10962/d1003205 , Labor unions -- South Africa , Apartheid -- South Africa , Industrial relations -- South Africa , Labor unions -- Law and legislation -- South Africa , Labor -- South Africa
- Description: Organised labour continues to play a prominent role in shaping employment relations in South Africa. The individual worker is powerless and in a weaker bargaining position against his employer. The advent of democracy was accompanied by numerous interventions to level the historically uneven bargaining field. The trade union movement has made and consolidated significant gains since the advent of democracy. It however faces a plethora of new challenges, such as the negative forces of globalisation, declining membership (often associated with high levels of unemployment and the changing nature of work from standard to atypical employment), the resurfacing of adversarialism in the bargaining process, and numerous shortcomings inherent in forums established to facilitate corporatism. Business is intensifying its calls for investor-friendly policies, which effectively mean a relaxation of labour policies. The trade union movement faces an enormous task of rebuilding confidence and credibility among its members and at the same time showing some commitment to other social actors, government and business, that it is committed to contribute to economic growth and employment creation. The central focus of this thesis will be to highlight the gains made by the trade union movement, the numerous challenges threatening their existence, and how they have attempted to redefine their role in the face of these challenges. It will attempt to offer advice on how trade unions can continue to play a prominent role in shaping relations of work in South Africa. The study begins with a historical overview of trade unionism in South Africa. It then attempts to establish how trade unions have made use of the institution of collective bargaining, the importance of organisational rights to the trade union movement, the effectiveness of industrial action, and the emerging challenges threatening the vibrancy of trade unions. The overall aim is to assess whether the trade union movement is still a force to be reckoned with and its future role in influencing employment relations in South Africa.
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