Judicial enforcement of socio-economic rights under the 1996 constitution : realising the vision of social justice
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
- Date Issued: 2003
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
- Date Issued: 2003
Rights to reality - the right to social security, with particular emphasis on the legal resources centre's welfare project in the Eastern Cape
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
- Full Text:
- Date Issued: 2003
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
- Full Text:
- Date Issued: 2003
The legal effect of a coup d'etat on traditional constitutional concepts
- Authors: Mkwentla, Nelson Koala
- Date: 2002
- Subjects: Coups d'état , Constitutional law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3684 , http://hdl.handle.net/10962/d1003199 , Coups d'état , Constitutional law
- Description: This thesis deals with constitutional law and other legal subjects such as Jurisprudence and Judicial Review. One constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened. The usurpers may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on that awesome occasion. This thesis sets out to examine the legal aspects of a coup d’ etat. The thesis is divided into six broad sections. Part one will deal with the theoretical background. I shall discuss an overview of Kelsen’s pure theory of law. The second part deals with the scope of its application in revolutionary situations and will also touch upon the reason behind the Kelsen’s theory as shown by decided cases from country to country. The third part deals with the essence as well as the significance of the doctrine of necessity to validate unconstitutional acts in the case of a coup d’ etat. This discussion is to pave the way for the fourth part which is to explore the position of judges who took oath of office under the old constitution. I am to explain their position after a coup d’ etat. The fifth part forms the gist of my research. I shall examine the effect of a coup d’ etat on traditional constitutional concepts such as fundamental rights, separation of powers, rule of law and judicial review in the military regime. The sixth part will deal with African experience. I shall include recommendations and conclusions drawn from the Lesotho and Uganda experiences.
- Full Text:
- Date Issued: 2002
- Authors: Mkwentla, Nelson Koala
- Date: 2002
- Subjects: Coups d'état , Constitutional law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3684 , http://hdl.handle.net/10962/d1003199 , Coups d'état , Constitutional law
- Description: This thesis deals with constitutional law and other legal subjects such as Jurisprudence and Judicial Review. One constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened. The usurpers may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on that awesome occasion. This thesis sets out to examine the legal aspects of a coup d’ etat. The thesis is divided into six broad sections. Part one will deal with the theoretical background. I shall discuss an overview of Kelsen’s pure theory of law. The second part deals with the scope of its application in revolutionary situations and will also touch upon the reason behind the Kelsen’s theory as shown by decided cases from country to country. The third part deals with the essence as well as the significance of the doctrine of necessity to validate unconstitutional acts in the case of a coup d’ etat. This discussion is to pave the way for the fourth part which is to explore the position of judges who took oath of office under the old constitution. I am to explain their position after a coup d’ etat. The fifth part forms the gist of my research. I shall examine the effect of a coup d’ etat on traditional constitutional concepts such as fundamental rights, separation of powers, rule of law and judicial review in the military regime. The sixth part will deal with African experience. I shall include recommendations and conclusions drawn from the Lesotho and Uganda experiences.
- Full Text:
- Date Issued: 2002
The legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts
- Authors: Ndou, Fulufhelo Clyde
- Date: 2001
- Subjects: Consumer protection , Consumer protection -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3688 , http://hdl.handle.net/10962/d1003203 , Consumer protection , Consumer protection -- Law and legislation -- South Africa
- Description: The thesis covers the field of the contract law known as the consumer credit law. It deals with the legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts. The thesis focuses on those credit contracts in which the legal relationship between the consumer and the dominant party is contained in the standard-form contracts, specifically credit agreements relating to money lending transactions in which the credit grantor’s rights are secured either by means of mortgage agreement, a suretyship contract, or a deed of cession. In South Africa the right to equality and human dignity, as opposed to the classical theories of contract: pacta sunt servanda and the principle of freedom of contract, are supported by the Constitution of the Republic of South Africa Act 108 of 1996 which entrenched democratic values permeating all areas of the law including contract law. In this thesis the harmonisation of these classical theories of contract law and the constitutional values of human dignity and equality have been considered. As has been shown in a number of cases, notably those relating to the contracts of suretyship, cession in securitatem debiti, and mortgage, the current law regulating the relationship between the credit grantors and the credit receivers is in need of law reform to fall in line with the constitutional values of equality and human dignity. The greatest difficulty inherent in this area of the law is the reluctance of the courts to intervene at the instance of consumers. The courts would only intervene in the clearest of the cases, and would only do so in the public interest. In this thesis the current South African Law is considered in the light of the developments elsewhere. The tendency of credit providers to alter the terms of the contracts unilaterally and the growing number of conflicting decisions of the Provincial Divisions of High Court has also been considered. The writer also considers the role of the newly created Consumer Affairs Court.
- Full Text:
- Date Issued: 2001
- Authors: Ndou, Fulufhelo Clyde
- Date: 2001
- Subjects: Consumer protection , Consumer protection -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3688 , http://hdl.handle.net/10962/d1003203 , Consumer protection , Consumer protection -- Law and legislation -- South Africa
- Description: The thesis covers the field of the contract law known as the consumer credit law. It deals with the legal protection afforded to the consumer under current South African law with emphasis on the legal position in specific credit agreements contained in standard-form contracts. The thesis focuses on those credit contracts in which the legal relationship between the consumer and the dominant party is contained in the standard-form contracts, specifically credit agreements relating to money lending transactions in which the credit grantor’s rights are secured either by means of mortgage agreement, a suretyship contract, or a deed of cession. In South Africa the right to equality and human dignity, as opposed to the classical theories of contract: pacta sunt servanda and the principle of freedom of contract, are supported by the Constitution of the Republic of South Africa Act 108 of 1996 which entrenched democratic values permeating all areas of the law including contract law. In this thesis the harmonisation of these classical theories of contract law and the constitutional values of human dignity and equality have been considered. As has been shown in a number of cases, notably those relating to the contracts of suretyship, cession in securitatem debiti, and mortgage, the current law regulating the relationship between the credit grantors and the credit receivers is in need of law reform to fall in line with the constitutional values of equality and human dignity. The greatest difficulty inherent in this area of the law is the reluctance of the courts to intervene at the instance of consumers. The courts would only intervene in the clearest of the cases, and would only do so in the public interest. In this thesis the current South African Law is considered in the light of the developments elsewhere. The tendency of credit providers to alter the terms of the contracts unilaterally and the growing number of conflicting decisions of the Provincial Divisions of High Court has also been considered. The writer also considers the role of the newly created Consumer Affairs Court.
- Full Text:
- Date Issued: 2001
The operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws
- Makobe, Melanchton Phillip Malepe
- Authors: Makobe, Melanchton Phillip Malepe
- Date: 2001
- Subjects: Letters of credit Conflict of laws Fraud
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3710 , http://hdl.handle.net/10962/d1007281
- Description: The thesis covers aspects of the law relating to letters of credit. It deals with the operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws. According to the principle of independence, banks must make payment in terms of the letter of credit irrespective of any dispute that may exist between the buyer and the seller in an underlying contract or other contracts. Although the principle of independence is clearly established, it is not absolute. An exception occurs in the case of fraud. Thus, if the seller has committed fraud, such as tendering forged documents, the buyer can instruct the bank not to make payment in terms of the credit. If the bank refuses to dishonour the letter of credit, the buyer can apply to a court to interdict the bank from making payment. In South African law the buyer must establish that the seller was party to fraud in relation to the documents presented to the bank for payment before the court can grant an interdict. This thesis also examines the standard of proof of fraud required in letters of credit transactions and proposes a standard of proof which will not unduly favour the seller whose good faith is in dispute. The fast growing technology of computers and telecommunications is rapidly changing the methods of transacting business by paper documentation and letter of credit transactions are no exception. At present the buyer can apply to the bank to issue a letter of credit through the computer and banks also communicate letter of credit transactions through computer networks. However, the beneficiary still has to present documents to the bank for payment in paper form. It is proposed that the Uniform Custom and Practice For Documentary Credits (UCP) be amended to provide for fully computerised letters of credit transactions. Another objective of the thesis is to examine the doctrine of strict compliance. In terms of the doctrine of strict compliance documents presented under the credit must comply strictly with the requirements set out in the credit. If banks are satisfied that the documents presented by the seller strictly conform with the requirements of the credit they are obliged to make payment as required by the credit. It is proposed that the doctrine of strict compliance should not be applied strictly. In other words, the banks should make payment in terms of the credit if the discrepancy in the documents is trivial. The thesis also covers conflict of laws issues. As the UCP does not have rules dealing with conflict of laws, most jurisdictions have developed their own rules to be applied by the courts in cases of conflict of laws. The thesis examines the different rules of conflict of laws as developed and practiced by different jurisdictions.
- Full Text:
- Date Issued: 2001
- Authors: Makobe, Melanchton Phillip Malepe
- Date: 2001
- Subjects: Letters of credit Conflict of laws Fraud
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3710 , http://hdl.handle.net/10962/d1007281
- Description: The thesis covers aspects of the law relating to letters of credit. It deals with the operation of letters of credit with particular reference to the doctrine of strict compliance, the principle of independence, the fraud exception and conflict of laws. According to the principle of independence, banks must make payment in terms of the letter of credit irrespective of any dispute that may exist between the buyer and the seller in an underlying contract or other contracts. Although the principle of independence is clearly established, it is not absolute. An exception occurs in the case of fraud. Thus, if the seller has committed fraud, such as tendering forged documents, the buyer can instruct the bank not to make payment in terms of the credit. If the bank refuses to dishonour the letter of credit, the buyer can apply to a court to interdict the bank from making payment. In South African law the buyer must establish that the seller was party to fraud in relation to the documents presented to the bank for payment before the court can grant an interdict. This thesis also examines the standard of proof of fraud required in letters of credit transactions and proposes a standard of proof which will not unduly favour the seller whose good faith is in dispute. The fast growing technology of computers and telecommunications is rapidly changing the methods of transacting business by paper documentation and letter of credit transactions are no exception. At present the buyer can apply to the bank to issue a letter of credit through the computer and banks also communicate letter of credit transactions through computer networks. However, the beneficiary still has to present documents to the bank for payment in paper form. It is proposed that the Uniform Custom and Practice For Documentary Credits (UCP) be amended to provide for fully computerised letters of credit transactions. Another objective of the thesis is to examine the doctrine of strict compliance. In terms of the doctrine of strict compliance documents presented under the credit must comply strictly with the requirements set out in the credit. If banks are satisfied that the documents presented by the seller strictly conform with the requirements of the credit they are obliged to make payment as required by the credit. It is proposed that the doctrine of strict compliance should not be applied strictly. In other words, the banks should make payment in terms of the credit if the discrepancy in the documents is trivial. The thesis also covers conflict of laws issues. As the UCP does not have rules dealing with conflict of laws, most jurisdictions have developed their own rules to be applied by the courts in cases of conflict of laws. The thesis examines the different rules of conflict of laws as developed and practiced by different jurisdictions.
- Full Text:
- Date Issued: 2001
An examination of employee participation as provided for in the Labour Relations Act 66 of 1995
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
- Full Text:
- Date Issued: 1999
Insubordination in the workplace
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Date Issued: 1999
The legal position of unmarried fathers in the adoption process after Fraser v Children's Court, Pretoria North, and others 1997 (2) SA 261 (CC) : towards a constitutionally-sound adoption statute
- Schäfer, Lawrence Ivan, 1972-
- Authors: Schäfer, Lawrence Ivan, 1972-
- Date: 1999
- Subjects: Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3694 , http://hdl.handle.net/10962/d1003209 , Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Description: The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.
- Full Text:
- Date Issued: 1999
- Authors: Schäfer, Lawrence Ivan, 1972-
- Date: 1999
- Subjects: Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3694 , http://hdl.handle.net/10962/d1003209 , Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Description: The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.
- Full Text:
- Date Issued: 1999
Juvenile diversion: keeping children out of prison
- Authors: Lewis, Sharon
- Date: 1997
- Subjects: Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3682 , http://hdl.handle.net/10962/d1003197 , Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Description: This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.
- Full Text:
- Date Issued: 1997
- Authors: Lewis, Sharon
- Date: 1997
- Subjects: Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3682 , http://hdl.handle.net/10962/d1003197 , Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Description: This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.
- Full Text:
- Date Issued: 1997
The domestic worker some considerations for law reform
- Meintjes-van der Walt, Lirieka
- Authors: Meintjes-van der Walt, Lirieka
- Date: 1993
- Subjects: Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3683 , http://hdl.handle.net/10962/d1003198 , Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Description: This thesis examines ways in which domestic workers in South Africa could be included within the scope of existing industrial legislation. At present the legal position of a work force of 862 000 is regulated by the common law contract of service. Socio-economic factors form the background of this investigation,which first sets out to determine whether the common-law contract of employment is capable of equitably regulating the employment relationship. The fallacy of the assumption that individuals agree on the terms of exchange in the employment contract on the basis of juridical equality, and the tenuous nature of the common-law employment relationship in the case of domestic workers are revealed. In the absence of any current statutory minima the employment contract is used to deprive domestic workers of what little protection they enjoy at common law. The two ways in which the individual employee's conditions of service can be protected from terms favouring the stronger of the two contracting parties are discussed. These are collective bargaining and statutory regulation. Difficulties experienced by domestic workers in respect of collective bargaining, whether they be included under the Labour Relations Act or not, are indicated. Proposals for including domestic workers under the Basic Conditions of Employment Act are evaluated in the light of legislation in the United States of America, Zimbabwe, Swaziland and Namibia. Ways of minimum-wage fixing are investigated, and it is concluded that the provisions of the Wage Act could be adapted for domestic workers. The 'unfair labour practice'concept is examined and the implications of its application for the domestic labour sector evaluated. It is recommended that the concept 'fairness' in the Labour Relations Act should apply to domestic workers, but that a code of practice be drafted to provide conceptions of 'fairness' as guidelines for employment behaviour. It is suggested that the parties refer disputes to mediation before being granted access to a Small Labour Court established for this purpose. In conclusion a draft code of practice is presented, as a basis for negotiation at a forum representative of the major actors in the domestic labour arena.
- Full Text:
- Date Issued: 1993
- Authors: Meintjes-van der Walt, Lirieka
- Date: 1993
- Subjects: Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3683 , http://hdl.handle.net/10962/d1003198 , Household employees -- Law and legislation -- South Africa , Black people -- Employment -- South Africa , Women -- Employment -- South Africa
- Description: This thesis examines ways in which domestic workers in South Africa could be included within the scope of existing industrial legislation. At present the legal position of a work force of 862 000 is regulated by the common law contract of service. Socio-economic factors form the background of this investigation,which first sets out to determine whether the common-law contract of employment is capable of equitably regulating the employment relationship. The fallacy of the assumption that individuals agree on the terms of exchange in the employment contract on the basis of juridical equality, and the tenuous nature of the common-law employment relationship in the case of domestic workers are revealed. In the absence of any current statutory minima the employment contract is used to deprive domestic workers of what little protection they enjoy at common law. The two ways in which the individual employee's conditions of service can be protected from terms favouring the stronger of the two contracting parties are discussed. These are collective bargaining and statutory regulation. Difficulties experienced by domestic workers in respect of collective bargaining, whether they be included under the Labour Relations Act or not, are indicated. Proposals for including domestic workers under the Basic Conditions of Employment Act are evaluated in the light of legislation in the United States of America, Zimbabwe, Swaziland and Namibia. Ways of minimum-wage fixing are investigated, and it is concluded that the provisions of the Wage Act could be adapted for domestic workers. The 'unfair labour practice'concept is examined and the implications of its application for the domestic labour sector evaluated. It is recommended that the concept 'fairness' in the Labour Relations Act should apply to domestic workers, but that a code of practice be drafted to provide conceptions of 'fairness' as guidelines for employment behaviour. It is suggested that the parties refer disputes to mediation before being granted access to a Small Labour Court established for this purpose. In conclusion a draft code of practice is presented, as a basis for negotiation at a forum representative of the major actors in the domestic labour arena.
- Full Text:
- Date Issued: 1993
Criminal and civil aspects of bribery
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
- Authors: Leslie, Andrew Brian
- Date: 1988
- Subjects: Bribery
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3701 , http://hdl.handle.net/10962/d1004607
- Description: The purpose of this work is to identify legal action which may be taken against parties to bribery in the fields of criminal and civil law. In particular, the element of mens rea is investigated with regard to criminal corruption. On the civil side, the principal, who has been the victim of bribery, has various remedies against the parties to the bribe. These remedies are analysed with special reference to the influence of English law on the South African law in this field. The options open to the principal, where his agent has made a secret profit which does not amount to bribery, are also considered.
- Full Text:
- Date Issued: 1988
Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei
- Authors: Mqeke, Bangilizwe Richman
- Date: 1986
- Subjects: Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3687 , http://hdl.handle.net/10962/d1003202 , Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Description: In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
- Full Text:
- Date Issued: 1986
- Authors: Mqeke, Bangilizwe Richman
- Date: 1986
- Subjects: Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3687 , http://hdl.handle.net/10962/d1003202 , Customary law -- South Africa , Customary law -- South Africa -- Ciskei , Evidence (Law) -- South Africa , Procedure (Law) -- South Africa
- Description: In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
- Full Text:
- Date Issued: 1986
The plea of truth and public benefit as a defence to an action for defamation in South African law
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985