A study of the Amathole District Municipality's settlement plan in the light of the land reform and spatial planning measures
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
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Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
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International law before municipal courts: the role of International Court of Justice decisions in domestic court proceedings with specific reference to United States case examples
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
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Life in the suburbs after "Grootboom": the role of local government in realising housing rights in the Eastern Cape
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
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Re-evaluating the law of vicarious liability in South Africa
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
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A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
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African customary law and gender justice in a progressive democracy
- Authors: Ozoemena, Rita Nkiruka
- Date: 2007
- Subjects: Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3692 , http://hdl.handle.net/10962/d1003207 , Customary law -- Africa , Women's rights -- Africa , Human rights -- Africa , Sex discrimination against women -- Africa , Women and democracy -- Africa , Culture and law -- Africa
- Description: The constant clash of African culture and traditions with human rights continue to militate against the adequate protection of women’s rights. Thus, African women constantly face challenges resulting from restrictions under customary laws of succession and inheritance, witchcraft violence, degrading treatment to widows, domestic violence; women killed by their partners, rape of women and children under all kinds of circumstances. This thesis was prompted by the issues raised in the Bhe case of the Constitutional Court of South Africa. In this landmark judgment, Ngcobo J dealt with the development of customary law, and how it must be approached by the courts in a manner that would have due regard to the rights of women on one hand and, on the other, would also accord customary law of its proper place, purpose and values within the African context. Against this background, the thesis focused on South Africa, Nigeria and Lesotho as excellent models of the broader challenges for women as well as governments; despite certain legislative measures put in place by the latter, the battle continues unabated for the balance of traditions and culture with women’s rights issues. Although South Africa is more progressive in terms of Constitution and practice than Nigeria and Lesotho, a lot still needs to be done particularly in the area of harmonization of laws. Regrettably, in Nigeria and Lesotho respect for the Constitution is superficial and lacks substantive policies that would promote women’s rights. To this extent, the balance of democratic values and promotion of women’s rights issues within the continent lie in women being partners in development rather than unduly suffering under intense burden of culture, tradition and societal stereotypes.
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An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
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Aspects of delictual liability in pharmacy practice
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
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Assessing the duty to exhaust internal remedies in the South African law
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
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International trade and environmental disputes : an analysis of Article XX of the General Agreement on Tariffs and Trade (1994) and environmental policies of the developing and developed world
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
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The cost of credit in the micro-finance industry in South Africa
- Authors: Campbell, Jonathan
- Date: 2007
- Subjects: Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3667 , http://hdl.handle.net/10962/d1003182 , Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Description: This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.
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Aspects of the sentencing process in child sexual abuse cases
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
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Discrimination against people with mental health problems in the workplace : a comparative analysis
- Authors: Lake, Rosalind
- Date: 2006
- Subjects: Employees -- Mental health People with disabilities -- Employment -- South Africa People with disabilities -- Employment -- Great Britain People with disabilities -- Employment -- Australia Discrimination in employment -- Law and legislation -- South Africa Discrimination in employment -- Law and legislation -- Australia Discrimination in employment -- Law and legislation -- Great Britain People with disabilities -- Legal status, laws, etc. -- South Africa People with disabilities -- Legal status, laws, etc. -- Australia People with disabilities -- Legal status, laws, etc. -- Great Britain
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3705 , http://hdl.handle.net/10962/d1005712
- Description: For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
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South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
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The extent to which review for unreasonableness is meaningfully incorporated in the promotion of Administrative Justice Act no. 3 of 2000
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
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A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
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Access to land as a human right the payment of just and equitable compensation for dispossessed land in South Africa
- Authors: Yanou, Michael A
- Date: 2005
- Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
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Justifiability as grounds for the review of labour arbitration proceedings
- Authors: Young, Kirsty Leigh
- Date: 2004
- Subjects: South Africa. Commission for Conciliation, Mediation and Arbitration Mediation and conciliation, Industrial -- South Africa Arbitration, Industrial -- South Africa Arbitration, Industrial -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3666 , http://hdl.handle.net/10962/d1003070
- Description: This thesis focuses on the review of labour arbitration awards given under the auspices of the following bodies: the Commission for Conciliation, Mediation and Arbitration ("CCMA"), bargaining councils, statutory councils, accredited private agencies and private arbitration tribunals. The general grounds of review applicable to the arbitration awards of each body are set out. Against this background, the case of Carephone (Pty) Ltd v Marcus NO & Others (1998) 19 ILJ 1425 (LAC) is analysed and the principles pertaining to the justifiability test are clarified. The judicial rationale for the application of the test to CCMA arbitration proceedings and criticisms of the test are then examined. Currently the justifiability test applies in the review of CCMA proceedings only, so the judicial reasoning for the rejection of justifiability as a ground for private arbitration review is examined. Three approaches are suggested for the application of the justifiability test in private arbitration review. First it is proposed that the Arbitration Act could be interpreted to include the justifiability test under the statutory review grounds. Failing the acceptance of this approach, the second submission is that arbitration agreements could be interpreted to include an implied term that the arbitrator is under a duty to give justifiable awards. A third suggestion is that the law should be developed by attaching an ex lege term to all arbitration agreements requiring arbitrators to give justifiable awards. In the final chapter, the requirement of justifiability in awards given under the auspices of collective bargaining agents and accredited private agencies highlights the incongruity in applying the justifiability test in CCMA arbitration review and in rejecting this test in private arbitration review.
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Law and culture in the new constitutional dispensation with specific reference to the custom of circumcision as practiced in the Eastern Cape
- Authors: Momoti, Ndyebo Kingsworth
- Date: 2004
- Subjects: Xhosa (African people) -- Social life and customs Xhosa (African people) -- Rites and ceremonies Circumcision -- Law and legislation -- South Africa -- Eastern Cape Initiation rites -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3685 , http://hdl.handle.net/10962/d1003200
- Description: This study examines the custom of circumcision in the context of culture, law and the Constitution. In Chapter 1 the writer considers the pervasive role of culture in the context of the current debate in relation to equality versus culture. In Chapter 2 the writer considers the origin, development and the legal significance of the custom of circumcision in the Eastern Cape. In Chapter 3 the writer traces the circumstances leading to the enactment of the Provincial statute governing circumcision of children. In this chapter the writer also poses the question whether an aspect of morality can effectively be regulated by law. Chapter 4 looks at the question of cultural rights in terms of the Constitution and the possible effect of the promulgation of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2000 on the approach of the courts in respect of constitutional challenges directed at some aspects of customary law. Chapter 5 looks at the custom of circumcision and the need for the protection of children. The writer raises the issue of the role of traditional leaders in the eradication of abuses associated with circumcision. The last Chapter comments on the reasons for the failure of the new Act governing circumcision in the Province.
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