Liberalisation and regulation of trade in the Southern African Development Community (SADC) : a critical analysis of the SADC trade protocol's provisions and its implementation
- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
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- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
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Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
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- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
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Sending and receiving: immunity sought by diplomats committing criminal offences
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
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The possibility of psychotherapeutic privilege in South Africa
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
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