The “Inadequately Married”: extending the putative marriage doctrine to assist vulnerable parties in invalid customary marriages
- Authors: Mavindidze, Tafadzwa Naomi
- Date: 2024-04-04
- Subjects: Customary law South Africa , Marriage law South Africa , Women Legal status, laws, etc. South Africa , Polygamy Law and legislation South Africa , Putative marriage , Recognition of Customary Marriages Act, 1998
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/434839 , vital:73109
- Description: This thesis considers whether the putative marriage doctrine can be developed to assist parties that find themselves in invalid customary marriages. The thesis focuses on situations where a customary marriage is considered invalid in circumstances where a party does not meet specific legislative or customary requirements. In most instances, these women are left without protection and regulation of the proprietary consequences of the so-called marital estate. The research considers the putative marriage doctrine as a remedy to this challenge. The doctrine is utilised where one or both parties believe in good faith that their marriage is valid when, in fact, one or more of the material requirements for marriage have not been met. Currently, the judgment of Zulu v Zulu 2008 (4) SA 12 (D) impedes the doctrine’s application in polygamous customary marriages and thus impedes its use by women who are found in invalid customary marriages. The research carries out a comparative analysis of Californian and Namibian family law, in order to consider how other jurisdictions deal with similar situations. The thesis further proposes a framework to develop the putative marriage doctrine in a way that ensures the protection of customary wives in subsequent marriages that are declared invalid. , Thesis (LLM) -- Faculty of Law, Law, 2024
- Full Text:
- Authors: Mavindidze, Tafadzwa Naomi
- Date: 2024-04-04
- Subjects: Customary law South Africa , Marriage law South Africa , Women Legal status, laws, etc. South Africa , Polygamy Law and legislation South Africa , Putative marriage , Recognition of Customary Marriages Act, 1998
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/434839 , vital:73109
- Description: This thesis considers whether the putative marriage doctrine can be developed to assist parties that find themselves in invalid customary marriages. The thesis focuses on situations where a customary marriage is considered invalid in circumstances where a party does not meet specific legislative or customary requirements. In most instances, these women are left without protection and regulation of the proprietary consequences of the so-called marital estate. The research considers the putative marriage doctrine as a remedy to this challenge. The doctrine is utilised where one or both parties believe in good faith that their marriage is valid when, in fact, one or more of the material requirements for marriage have not been met. Currently, the judgment of Zulu v Zulu 2008 (4) SA 12 (D) impedes the doctrine’s application in polygamous customary marriages and thus impedes its use by women who are found in invalid customary marriages. The research carries out a comparative analysis of Californian and Namibian family law, in order to consider how other jurisdictions deal with similar situations. The thesis further proposes a framework to develop the putative marriage doctrine in a way that ensures the protection of customary wives in subsequent marriages that are declared invalid. , Thesis (LLM) -- Faculty of Law, Law, 2024
- Full Text:
The dissipation of marital assets pending a divorce order in South Africa: a proposal for reform
- Mahlangu, Busisiwe Hlophane Maria
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
The obligation of South Africa to provide social security to refugees and asylum seekers during the COVID-19 pandemic
- Authors: Dekeda, Awethu Zethu
- Date: 2023-10-13
- Subjects: Social security Law and legislation South Africa , Human rights South Africa , Refugees Government policy South Africa , Political refugees South Africa , COVID-19 Pandemic, 2020- Influence
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424119 , vital:72125
- Description: Covid-19 a novel pandemic, has wreaked havoc globally, threatening the livelihoods of all, including refugees and asylum seekers. Like all other countries globally, South Africa has gone to great lengths to mitigate the challenges that this pandemic has caused. However, it is far from clear whether these responses are according due regard to the rights of some of the most vulnerable in society, amongst which are refugees. This thesis deals with South Africa’s obligation to provide social security to refugees during the Covid-19 pandemic. It specifically assesses whether South Africa's responses to the Covid-19 pandemic were in adherence to fundamental refugee law principles relevant to the protection of refugees. The study commences with a general introduction, followed by an analysis of the international human rights and refugee law framework relevant to protection of refugees. This framework is used to assess South Africa’s responses. Subsequently, the discussion delves into South Africa’s own national framework on social security. Using the standards identified in both the national and international frameworks, the thesis then proceeds to measure South Africa’s Covid-19 related responses regarding social security to resolve the issue of whether South Africa adhered to these standards in as far the protection of refugees’ right to social security is concerned. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Dekeda, Awethu Zethu
- Date: 2023-10-13
- Subjects: Social security Law and legislation South Africa , Human rights South Africa , Refugees Government policy South Africa , Political refugees South Africa , COVID-19 Pandemic, 2020- Influence
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424119 , vital:72125
- Description: Covid-19 a novel pandemic, has wreaked havoc globally, threatening the livelihoods of all, including refugees and asylum seekers. Like all other countries globally, South Africa has gone to great lengths to mitigate the challenges that this pandemic has caused. However, it is far from clear whether these responses are according due regard to the rights of some of the most vulnerable in society, amongst which are refugees. This thesis deals with South Africa’s obligation to provide social security to refugees during the Covid-19 pandemic. It specifically assesses whether South Africa's responses to the Covid-19 pandemic were in adherence to fundamental refugee law principles relevant to the protection of refugees. The study commences with a general introduction, followed by an analysis of the international human rights and refugee law framework relevant to protection of refugees. This framework is used to assess South Africa’s responses. Subsequently, the discussion delves into South Africa’s own national framework on social security. Using the standards identified in both the national and international frameworks, the thesis then proceeds to measure South Africa’s Covid-19 related responses regarding social security to resolve the issue of whether South Africa adhered to these standards in as far the protection of refugees’ right to social security is concerned. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
The Role of the courts in the interpretation and implementation of the Right to Basic Education in Section 29(1)(a) of the South African Constitution
- Authors: Ngubane, Kwanele Nhlanhla
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424141 , vital:72127
- Description: The right to education in section 29(1)(a) of the Constitution was meant to signal a break between an education system divided along racial lines, and a new democratic education system based on equity, equality, and opportunity for all learners. In reality, the South African education system still remains deeply divided along racial lines, with poor, mostly black learners, being under-resourced by the state, while their richer, mostly white, counterparts are being taught in schools that have access to all the resources necessary to realise the right to basic education. As a result, the right to education in section 29(1)(a) of the Constitution has been heavily debated, and between 2010 and 2022, the South African courts have often been called on to interpret the right. In the process, a rich jurisprudence has developed on the core content of the right to basic education, with findings by the courts that the right includes an entitlement to a number of educational resources. These include access to school infrastructure, learner-teacher support materials, desks and chairs, scholar transport, teaching and non-teaching staff, and nutrition. This study examines the way South African courts, between 2010 and 2022, have interpreted and implemented the right to basic education to give effect to section 29(1)(a) of the Constitution. While South African courts have historically shied away from interpreting socio-economic rights to contain a minimum core content and have rather opted for a reasonableness approach, the same is not entirely true for section 29(1)(a). As stated above, courts have been willing to find that the right entails a minimum basket of goods and services without which the right cannot be realised. By examining some of the most important education rights cases during this period, the study proposes that there are five factors that have guided the courts’ interpretation of the right and has assisted in the courts finding that the right contains a minimum core content. These factors are the historical context of the right to basic education; the textual formulation of the right to basic education in section 29(1)(a) of the Constitution; the interrelatedness of the right to basic education and other rights within the Bill of Rights; subsidiary education policies, legislation, and regulations, and lastly, the role of international law. This study seeks to consider the extent to which each of these factors have played a role in courts’ interpretation of section 29(1)(a). The study also considers the implementation of these judgments and the role that the courts have played in realising the right to education for learners on ground-level. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Ngubane, Kwanele Nhlanhla
- Date: 2023-10-13
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424141 , vital:72127
- Description: The right to education in section 29(1)(a) of the Constitution was meant to signal a break between an education system divided along racial lines, and a new democratic education system based on equity, equality, and opportunity for all learners. In reality, the South African education system still remains deeply divided along racial lines, with poor, mostly black learners, being under-resourced by the state, while their richer, mostly white, counterparts are being taught in schools that have access to all the resources necessary to realise the right to basic education. As a result, the right to education in section 29(1)(a) of the Constitution has been heavily debated, and between 2010 and 2022, the South African courts have often been called on to interpret the right. In the process, a rich jurisprudence has developed on the core content of the right to basic education, with findings by the courts that the right includes an entitlement to a number of educational resources. These include access to school infrastructure, learner-teacher support materials, desks and chairs, scholar transport, teaching and non-teaching staff, and nutrition. This study examines the way South African courts, between 2010 and 2022, have interpreted and implemented the right to basic education to give effect to section 29(1)(a) of the Constitution. While South African courts have historically shied away from interpreting socio-economic rights to contain a minimum core content and have rather opted for a reasonableness approach, the same is not entirely true for section 29(1)(a). As stated above, courts have been willing to find that the right entails a minimum basket of goods and services without which the right cannot be realised. By examining some of the most important education rights cases during this period, the study proposes that there are five factors that have guided the courts’ interpretation of the right and has assisted in the courts finding that the right contains a minimum core content. These factors are the historical context of the right to basic education; the textual formulation of the right to basic education in section 29(1)(a) of the Constitution; the interrelatedness of the right to basic education and other rights within the Bill of Rights; subsidiary education policies, legislation, and regulations, and lastly, the role of international law. This study seeks to consider the extent to which each of these factors have played a role in courts’ interpretation of section 29(1)(a). The study also considers the implementation of these judgments and the role that the courts have played in realising the right to education for learners on ground-level. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
Prosecution of forced marriage by international courts and tribunals in light of the principle of legality
- Okeyo, Julian Rebecca Atieno
- Authors: Okeyo, Julian Rebecca Atieno
- Date: 2023-03-29
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420720 , vital:71772
- Description: Thesis embargoed. Probable release date in 2024. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Okeyo, Julian Rebecca Atieno
- Date: 2023-03-29
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420720 , vital:71772
- Description: Thesis embargoed. Probable release date in 2024. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
The proprietary consequences of foreign marriages for the purposes of estate planning and succession in South Africa
- Authors: Thorne, Aimee Liza
- Date: 2023-03-29
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420725 , vital:71773
- Description: This thesis is intended to provide clarity regarding the proprietary consequences of foreign marriages in the context of estate planning and succession in South Africa. It includes an exploration into the impact of specific legislation on foreign marriages, the implications of matrimonial property regimes on a deceased estate in South Africa, private international law principles affecting matrimonial property and succession claims, the scope of antenuptial contracts and postnuptial contracts as existing remedies for foreign remedies, and the harmonisation of succession and matrimonial property law in the European Union (EU). It furthermore suggests potential reforms for the overhaul of the lex domicilii matrimonii principle and associated issues arising therefrom. Various specific issues discussed include the waiver of accrual claims, maintenance claims by surviving spouses of a foreign marriage, choice-of-law rules for matrimonial property rights and succession rights, the registration of a domestic or foreign antenuptial contract for foreign marriages, the formal validity and proper law of antenuptial contracts, the operation of the immutability principle on a domestic and international level, and the common-law approach to the recognition of postnuptial contracts and spousal donations. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Authors: Thorne, Aimee Liza
- Date: 2023-03-29
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420725 , vital:71773
- Description: This thesis is intended to provide clarity regarding the proprietary consequences of foreign marriages in the context of estate planning and succession in South Africa. It includes an exploration into the impact of specific legislation on foreign marriages, the implications of matrimonial property regimes on a deceased estate in South Africa, private international law principles affecting matrimonial property and succession claims, the scope of antenuptial contracts and postnuptial contracts as existing remedies for foreign remedies, and the harmonisation of succession and matrimonial property law in the European Union (EU). It furthermore suggests potential reforms for the overhaul of the lex domicilii matrimonii principle and associated issues arising therefrom. Various specific issues discussed include the waiver of accrual claims, maintenance claims by surviving spouses of a foreign marriage, choice-of-law rules for matrimonial property rights and succession rights, the registration of a domestic or foreign antenuptial contract for foreign marriages, the formal validity and proper law of antenuptial contracts, the operation of the immutability principle on a domestic and international level, and the common-law approach to the recognition of postnuptial contracts and spousal donations. , Thesis (LLM) -- Faculty of Law, Law, 2023
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On legal expressivism, incorporeal injuries and the equal protection clause: an analysis through the lens of the Civil Union Act
- Authors: Tsele, Michael Vuyo
- Date: 2022-10-14
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/405434 , vital:70171
- Description: Thesis embargoed. To be released in 2024. , Thesis (LLM) -- Faculty of Law, Law, 2022
- Full Text:
- Authors: Tsele, Michael Vuyo
- Date: 2022-10-14
- Subjects: Uncatalogued
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/405434 , vital:70171
- Description: Thesis embargoed. To be released in 2024. , Thesis (LLM) -- Faculty of Law, Law, 2022
- Full Text:
Protecting the right to identity against catfishing
- Authors: Ndyulo, Lisa Neliswa Latima
- Date: 2022-04-06
- Subjects: Catfishing South Africa , False personation Law and legislation South Africa , Torts South Africa , Mass media and publicity South Africa , Social media Law and legislation South Africa , Identity theft Law and legislation South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/290767 , vital:56782
- Description: Catfishing is a form of impersonation occurring on social media that interferes with a person’s right to identity. It involves creating a fake profile online using another person’s images. The facets of the right to identity are image, name, and likeness, among others. Catfishing affects a person’s right to identity and human dignity. Hence, the thesis aims to determine whether the right to identity adequately protects individuals against catfishing. This thesis is a desktop analysis considering the South African legal framework related to the right to identity, including the common law, the Constitution of the Republic of South Africa, 1996, and legislation. The thesis is also a comparative analysis assessing the adequacy of addressing catfishing through the right to identity. The study evaluates the right to identity’s adequacy by juxtaposing the South African legal framework with California and Oklahoma’s common law and statutory interventions. The study reveals that the right to identity protects South African social networking website users against catfishing. Like the common law right of privacy in California and Oklahoma, a person infringes the right to identity when they use another person’s identity facets to portray them in a false light, and like the statutory right of publicity in California and Oklahoma, a person infringes identity when they appropriate facets of another person’s identity for commercial gain. The infringement of the right to identity entitles a person to legal remedies, including a claim for damages, among other things. The thesis also considers principles of conflict of laws to determine the operative law in an instance where a victim resides in South Africa and the perpetrator resides in the US, or vice versa. The study recommends that developing the common law to recognise that identity can be infringed by mere appropriation not linked to a commercial purpose would be beneficial for addressing catfishing adequately in South Africa. Legal development contributes to the constitutional imperative to align the common law with society’s shifting needs and address novel legal issues, such as catfishing. , Thesis (LLM) -- Faculty of Law, Law, 2022
- Full Text:
- Authors: Ndyulo, Lisa Neliswa Latima
- Date: 2022-04-06
- Subjects: Catfishing South Africa , False personation Law and legislation South Africa , Torts South Africa , Mass media and publicity South Africa , Social media Law and legislation South Africa , Identity theft Law and legislation South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/290767 , vital:56782
- Description: Catfishing is a form of impersonation occurring on social media that interferes with a person’s right to identity. It involves creating a fake profile online using another person’s images. The facets of the right to identity are image, name, and likeness, among others. Catfishing affects a person’s right to identity and human dignity. Hence, the thesis aims to determine whether the right to identity adequately protects individuals against catfishing. This thesis is a desktop analysis considering the South African legal framework related to the right to identity, including the common law, the Constitution of the Republic of South Africa, 1996, and legislation. The thesis is also a comparative analysis assessing the adequacy of addressing catfishing through the right to identity. The study evaluates the right to identity’s adequacy by juxtaposing the South African legal framework with California and Oklahoma’s common law and statutory interventions. The study reveals that the right to identity protects South African social networking website users against catfishing. Like the common law right of privacy in California and Oklahoma, a person infringes the right to identity when they use another person’s identity facets to portray them in a false light, and like the statutory right of publicity in California and Oklahoma, a person infringes identity when they appropriate facets of another person’s identity for commercial gain. The infringement of the right to identity entitles a person to legal remedies, including a claim for damages, among other things. The thesis also considers principles of conflict of laws to determine the operative law in an instance where a victim resides in South Africa and the perpetrator resides in the US, or vice versa. The study recommends that developing the common law to recognise that identity can be infringed by mere appropriation not linked to a commercial purpose would be beneficial for addressing catfishing adequately in South Africa. Legal development contributes to the constitutional imperative to align the common law with society’s shifting needs and address novel legal issues, such as catfishing. , Thesis (LLM) -- Faculty of Law, Law, 2022
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The regulation of privacy on cloud computing services in terms of the Protection of Personal Information Act 4 of 2013
- Authors: Malahleka, Mthuthukisi
- Date: 2022-04-06
- Subjects: South Africa. Protection of Personal Information Act, 2013 , Cloud computing Law and legislation South Africa , Data protection Law and legislation South Africa , Personal information management South Africa , Data privacy South Africa , Computer security Law and legislation South Africa , General Data Protection Regulation (GDPR)
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/290731 , vital:56779
- Description: There is a relatively new development in Information Technology (IT) space known as cloud computing, software and service delivered remotely through the Internet without installing software on a computer. Cloud computing has quickly gathered steam as one of the most prominent topics in IT, and indeed within the business sector as a whole. Cloud computing is one such development associated with opportunities and benefits, especially in the commercial sector. Due to the development of IT and many businesses adopting e-commerce business-related strategies, cloud computing has revolutionised how personal information is processed. The advent of cloud computing as a mechanism to process personal information has brought many legal challenges for protecting the right to privacy enshrined under section 14 of the South African Constitution, which is a vulnerable part of one’s personality right. The right to privacy has long been protected even before adopting the Constitution under the common law of delict (actio iniuriarumn). As the adoption rate of cloud computing services by businesses continues to increase, the legal considerations and risks become more prevalent. The lawmakers struggle to keep pace with the rapidly changing technological advancements, at least for now. Both the common law and the Constitution could not address all the legal aspects of data protection and the adoption of cloud computing services hence the promulgation of the Protection of Personal Information Act 4 of 2013 (POPI Act). The POPI Act’s main objective is to protect the personal information of both natural and juristic persons. Personal information about an individual forms part of privacy. Unlawful processing of such personal information is a violation of the right to privacy of an individual. It is now widely recognised that the unregulated processing of personal information significantly impacts fundamental human rights like privacy, personality, and autonomy. A close analysis of cloud computing regulation is necessary, as legal protection mechanisms must safeguard the processing of personal information and establish extraterritorial jurisdiction to regulate the use of cloud computing within national legislation as cloud computing provides a transnational characteristic on the cross-border flow of personal information. In this thesis, a question is asked on whether the current data protection laws in South Africa on protecting the right to privacy in the cloud computing services context are adequate. The analysis will determine whether the overlaps between these pieces of data protection laws are competent to deal with the ever-increasing threats on the right to privacy and if they meet the international data protection standards set by the European Union’s General Data Protection Regulation (GDPR). The research seeks to analyse and reveal the shortcomings under the Constitution and the common law that led to adopting the POPI Act by studying the regulation of cloud computing services. This analysis will determine the shortcomings of the POPI Act as well in the context of cloud computing. The research will then follow a comparative analysis of the POPI Act and the GDPR to determine the application of the GDPR on international data breaches and compare its provisions with the POPI Act in the context of cloud computing. Finally, the research will address the question as to whether a multi-faceted approach, which includes a Model Law on cloud computing, would be an appropriate starting point setting out requirements for the use of this technology can be sufficient in protecting data subjects. And as cloud computing risks are not only a national but also a global problem, South Africa needs to look at the option of entering into mutual agreements with other countries and organisations to regulate cloud computing at an international level. , Thesis (LLM) -- Faculty of Law, Law, 2022
- Full Text:
- Authors: Malahleka, Mthuthukisi
- Date: 2022-04-06
- Subjects: South Africa. Protection of Personal Information Act, 2013 , Cloud computing Law and legislation South Africa , Data protection Law and legislation South Africa , Personal information management South Africa , Data privacy South Africa , Computer security Law and legislation South Africa , General Data Protection Regulation (GDPR)
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/290731 , vital:56779
- Description: There is a relatively new development in Information Technology (IT) space known as cloud computing, software and service delivered remotely through the Internet without installing software on a computer. Cloud computing has quickly gathered steam as one of the most prominent topics in IT, and indeed within the business sector as a whole. Cloud computing is one such development associated with opportunities and benefits, especially in the commercial sector. Due to the development of IT and many businesses adopting e-commerce business-related strategies, cloud computing has revolutionised how personal information is processed. The advent of cloud computing as a mechanism to process personal information has brought many legal challenges for protecting the right to privacy enshrined under section 14 of the South African Constitution, which is a vulnerable part of one’s personality right. The right to privacy has long been protected even before adopting the Constitution under the common law of delict (actio iniuriarumn). As the adoption rate of cloud computing services by businesses continues to increase, the legal considerations and risks become more prevalent. The lawmakers struggle to keep pace with the rapidly changing technological advancements, at least for now. Both the common law and the Constitution could not address all the legal aspects of data protection and the adoption of cloud computing services hence the promulgation of the Protection of Personal Information Act 4 of 2013 (POPI Act). The POPI Act’s main objective is to protect the personal information of both natural and juristic persons. Personal information about an individual forms part of privacy. Unlawful processing of such personal information is a violation of the right to privacy of an individual. It is now widely recognised that the unregulated processing of personal information significantly impacts fundamental human rights like privacy, personality, and autonomy. A close analysis of cloud computing regulation is necessary, as legal protection mechanisms must safeguard the processing of personal information and establish extraterritorial jurisdiction to regulate the use of cloud computing within national legislation as cloud computing provides a transnational characteristic on the cross-border flow of personal information. In this thesis, a question is asked on whether the current data protection laws in South Africa on protecting the right to privacy in the cloud computing services context are adequate. The analysis will determine whether the overlaps between these pieces of data protection laws are competent to deal with the ever-increasing threats on the right to privacy and if they meet the international data protection standards set by the European Union’s General Data Protection Regulation (GDPR). The research seeks to analyse and reveal the shortcomings under the Constitution and the common law that led to adopting the POPI Act by studying the regulation of cloud computing services. This analysis will determine the shortcomings of the POPI Act as well in the context of cloud computing. The research will then follow a comparative analysis of the POPI Act and the GDPR to determine the application of the GDPR on international data breaches and compare its provisions with the POPI Act in the context of cloud computing. Finally, the research will address the question as to whether a multi-faceted approach, which includes a Model Law on cloud computing, would be an appropriate starting point setting out requirements for the use of this technology can be sufficient in protecting data subjects. And as cloud computing risks are not only a national but also a global problem, South Africa needs to look at the option of entering into mutual agreements with other countries and organisations to regulate cloud computing at an international level. , Thesis (LLM) -- Faculty of Law, Law, 2022
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A critical assessment of the relationship between the AfCFTA and World Trade Organisation dispute settlement mechanisms, in light of the Conflict of Jurisdiction
- Nhemachena, Tichakunda Charles
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Nhemachena, Tichakunda Charles
- Date: 2021-10-29
- Subjects: African Continental Free Trade Area , World Trade Organization , Dispute resolution (Law) , Conflict of judicial decisions , Good faith (Law)
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10962/192052 , vital:45191
- Description: This thesis interrogates the relationship between the Dispute Settlement Understanding and Africa Continental Free Trade Area dispute settlement mechanism, in light of the conflict of jurisdiction. The conflict of jurisdiction is an adverse effect of the fragmentation of international law. The uncoordinated proliferation of international treaties has increased occurrences of overlapping memberships and overlapping subject matter regulation amongst treaties. Whenever the overlaps mentioned above exist, and a dispute arises concerning matters of overlap, that dispute can be heard in more than one tribunal, giving rise to a conflict of jurisdiction. Jurisdictional conflicts are a problem because they breed uncertainty in the adjudication of disputes; they increase the risk of forum shopping, conflict of rulings, protracted litigation, and waste resources. There is a significant risk for jurisdictional conflicts between the World Trade Organisation and Africa Continental Free Trade Area agreements, because of membership and subject matter overlaps. To mitigate the problems caused by jurisdictional conflicts, the Africa Continental Free Trade Area agreement has incorporated a fork-in-the-road clause. Fork-in-the-road provisions allow parties to choose their preferred forum, and once the forum is chosen, the parties are prohibited from bringing the same dispute to another tribunal. Unfortunately, fork-in-the-road clauses are insufficient in resolving jurisdictional conflicts because they do not bind the Dispute Settlement Understanding. It is only bound to enforce World Trade Organisation obligations and not non-World Trade Organisation obligations. The extent to which non-World Trade Organisation norms apply in the Dispute Settlement Understanding is unsettled, making it difficult to conclude whether a fork-in-the-road provision will be effective an effective solution to potential jurisdictional conflicts. In this thesis, the researcher investigates the prospects of the World Trade Organisation applying the AfCFTA fork-in-the-road clause, directly, as a potential solution to the conflict of jurisdiction. In addition, the researcher will also investigate an alternative means of applying the AfCFTA fork-in-the-road provision, indirectly, using the World Trade Organisation procedural good faith provisions. In conclusion, the researcher provides recommendations on how the World Trade Organisation and the AfCFTA agreement can facilitate the application of fork-in-the-road clauses in the Dispute Settlement Understanding to resolve the conflict of jurisdiction. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
Legal ethics and the lawyer-client relationship in South Africa: A proposal for reform using local values
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Uncatalogued
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262
- Description: Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Uncatalogued
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262
- Description: Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
The factors to be considered by the competition authorities when a fine may cause the firm to exit
- Authors: Quilliam, Layne Edwin
- Date: 2021-10
- Subjects: South Africa. Competition Act, 1998 , Competition Tribunal (South Africa) , Business enterprises Law and legislation South Africa , Debt-to-equity ratio South Africa , Bankruptcy Prevention , Causation , Competition
- Language: English
- Type: Masters theses , text
- Identifier: http://hdl.handle.net/10962/188408 , vital:44751
- Description: The Competition Act empowers the Competition Tribunal to levy fines against a firm for certain contraventions of the Act. Such fines are statutorily capped to prevent the fine from causing the firm’s exit. This maximum is based on the overarching principle of fairness which precludes a fine, on its own, from destroying a firm’s business. However, the Competition Appeal Court acknowledged in 2013 that fines below this cap may still cause a firm to exit. The purpose of this paper is to propose the factors that should be considered when determining a firm’s ability to pay such a below-cap fine. These factors are the calculation of the fine, probable exit, causation of exit and the competitive effect of the firm’s exit. The fining provisions of the Act are initially explored to provide context for the discussion and are then compared to equivalent provisions in Europe. Liquidation and business rescue proceedings are then described as the most common forms of a firm’s exit from the market. Methods for determining the causal relationship between the fine and the firm’s exit are explored through delictual law’s factual and legal causation. The competitive effects of the firm’s exit are premised on the purpose of the Competition Act and are evaluated through the Competition Act’s merger provisions, specifically, the failing firm factor. These proposed factors are then tested through hypothetical facts to analyse their possible interactions and efficacy. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Quilliam, Layne Edwin
- Date: 2021-10
- Subjects: South Africa. Competition Act, 1998 , Competition Tribunal (South Africa) , Business enterprises Law and legislation South Africa , Debt-to-equity ratio South Africa , Bankruptcy Prevention , Causation , Competition
- Language: English
- Type: Masters theses , text
- Identifier: http://hdl.handle.net/10962/188408 , vital:44751
- Description: The Competition Act empowers the Competition Tribunal to levy fines against a firm for certain contraventions of the Act. Such fines are statutorily capped to prevent the fine from causing the firm’s exit. This maximum is based on the overarching principle of fairness which precludes a fine, on its own, from destroying a firm’s business. However, the Competition Appeal Court acknowledged in 2013 that fines below this cap may still cause a firm to exit. The purpose of this paper is to propose the factors that should be considered when determining a firm’s ability to pay such a below-cap fine. These factors are the calculation of the fine, probable exit, causation of exit and the competitive effect of the firm’s exit. The fining provisions of the Act are initially explored to provide context for the discussion and are then compared to equivalent provisions in Europe. Liquidation and business rescue proceedings are then described as the most common forms of a firm’s exit from the market. Methods for determining the causal relationship between the fine and the firm’s exit are explored through delictual law’s factual and legal causation. The competitive effects of the firm’s exit are premised on the purpose of the Competition Act and are evaluated through the Competition Act’s merger provisions, specifically, the failing firm factor. These proposed factors are then tested through hypothetical facts to analyse their possible interactions and efficacy. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
An analysis of the countervailing measures used to address the anti-competitive effects of Government subsidies in the African Continental Free Trade Area
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Matsimbi, Rhulani Shaun
- Date: 2021-04
- Subjects: Subsidies -- Law and legislation -- Africa , Agreement on Subsidies and Countervailing Measures (1994 April 15) , Trade regulation -- Africa , World Trade Organization , Antitrust law -- Africa , Restraint of trade -- Africa , African Continental Free Trade (AfCFTA) Agreement
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/178330 , vital:42930
- Description: Government subsidies are becoming more prevalent on the African continent. Subsidies allow the government to intervene in markets to incentivise more investment into nascent and struggling industries by improving the efficiency of firms in such industries. As such, subsidies form an essential part of some African countries’ industrialisation policies. However, the use of subsidies faces a challenge because of the prohibition contained in the World Trade Organisation’s (WTO) Agreement on Subsidies and Countervailing Measures (SCM Agreement). The SCM Agreement prohibits the granting of subsidies that are contingent on export performance or the use of domestic over imported content. While African countries have not faced challenges in the WTO for their use of these subsidies, this may change with the operation of the African Continental Free Trade (AfCFTA) Agreement. This is because the AfCFTA Agreement localises the WTO’s rules on subsidisation. This study critically examines the provisions in the AfCFTA Guidelines on the Implementation of Trade Remedies that regulate the use of export subsidies and subsidies contingent on the use of domestic content. It discusses how the absolute prohibition of these subsidies in the AfCFTA Agreement is not the most effective way to regulate their anti-competitive effects in the African continent. Specifically, this study discusses the role that competition policy might play in ensuring that export subsidies and local content subsidies are regulated in a manner that suits Africa’s context. Ultimately, this study concludes and recommends that the AfCFTA must develop unique rules to regulate subsidies in a way that caters to the needs of the continent. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
Making Sense of Barkhuizen 2 : An Investigation into the Public Policy Defence of ‘Unfair Enforcement’ in South African Law, with Reference to the Law on Covenants in Restraint of Trade
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
- Authors: Moroeng, Tsukudu Kenyatta
- Date: 2021-04
- Subjects: Restraint of trade -- South Africa , Public policy (Law) -- South Africa , Contracts (Roman-Dutch law) , Customary law -- South Africa , Barkhuizen v Napier
- Language: English
- Type: thesis , text , Masters , LLM
- Identifier: http://hdl.handle.net/10962/177147 , vital:42794
- Description: This thesis investigates the application of the public policy test for determining the enforceability of a valid contractual clause established in Barkhuizen v Napier. After analysing the historical development of the application of the doctrine of public policy, the study examines the conceptualisation and application of the public policy test in the leading cases in South Africa. The study then provides an analysis of the recent judgment of Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others, which outlined the current legal position on the proper constitutional approach to the judicial enforcement of valid contractual clauses. The study argues that, although the Constitutional Court in Beadica provided some clarity on what public policy is in modern South African law, it did not, from a practical point of view, set out the method that should be used to adjudicate such cases. The study thereafter suggests that, to address this issue, our courts should consider developing a methodological approach to measuring public policy in unfair enforcement cases. To support this proposition, the study examines the law on determining the enforcement of restraint of trade agreements. It is argued that, within that context, the courts have formulated a methodological approach in the form of a list of standard questions that a judge should ask when determining the enforceability of a restraint clause. The thesis then closes with a case study, using guidelines established from the approach in restraint cases, to illustrate how the proposed guideline may be formulated, and how it could be applied in general unfair enforcement cases. The thesis argues that a practical guide of this nature would serve as a useful tool for judges to use when faced with a claim relating to the unfair enforcement of a valid clause other than a restraint clause, and would thus ensure consistency in contractual enforcement analysis in South Africa. , Thesis (LLM) -- Faculty of Law, Law, 2021
- Full Text:
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.
- Full Text:
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.
- Full Text:
- 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.
- Full Text:
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.
- Full Text:
- 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.
- Full Text:
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.
- Full Text:
- 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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