A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
A comparative analysis of the enforcement of market abuse provisions
- Authors: Chitimira, Howard
- Date: 2012
- Subjects: Corporation law -- South Africa , Insider trading in securities -- South Africa , Securities -- South Africa , Efficient market theory , Securities fraud
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10240 , http://hdl.handle.net/10948/d1015008
- Description: Market abuse practices may directly or indirectly give rise to diverse problems such as inaccurate stock market prices, low public investor confidence, reduced market integrity and poor efficiency in the affected financial markets. This thesis reveals that three major forms of market abuse, namely insider trading, prohibited trading practices (trade-based market manipulation) and the making or publication of false, misleading or deceptive statements, promises and forecasts relating to listed securities (disclosure-based market manipulation) are prohibited in South Africa. However, although South Africa has had market abuse legislation for about 30 years, and must be commended for its great effort to enhance market integrity by combating market abuse practices, the enforcement of such legislation is still problematic. Moreover, in spite of the fact that there is no empirical data or accurate figures quantifying the occurrence and extent of market abuse activities in the South African financial markets, this thesis submits that market abuse practices are still to be completely eradicated. Accordingly, this thesis suggests that the aforementioned problem might have been aggravated by inter alia, various gaps, flaws and/or inconsistent implementation and enforcement of the market abuse legislation in South Africa. To this end, the anti-market abuse enforcement framework under the Securities Services Act 36 of 2004 is analysed to investigate its adequacy. The co-operation and role of the Financial Services Board, the courts, the Directorate of Market Abuse and other relevant stakeholders is also examined and discussed. Moreover, the co-operation between the Financial Services Board and similar international agencies is discussed to gauge its effectiveness in relation to the combating of cross-border market abuse practices. The adequacy of the awareness and preventative measures in place to curb market abuse practices is also investigated to determine whether such measures are robust enough to combat other new challenges that were posed by the 2007 to 2009 global financial crisis. Furthermore, a comparative analysis is undertaken of the enforcement of the market abuse prohibition in other jurisdictions, namely the United States of America, the United Kingdom, the European Union and Australia. This was done to investigate the relevant lessons that can be learnt or adopted from these jurisdictions. The thesis further discusses the adequacy of the recently introduced provisions of the Financial Markets Bill as well as the subsequent market abuse provisions of the Financial Markets Bill 2012. The thesis highlights that the aforementioned Bills are positive attempts by the policy makers to improve the enforcement of the market abuse provisions in South Africa. Nonetheless, the thesis reveals that most of the shortcomings contained in the Securities Services Act 36 of 2004 were duplicated in the Financial Markets Bill and the Financial Markets Bill 2012. In light of this, it remains to be seen whether the market abuse provisions contained in the Financial Markets Bill and/or the Financial Markets Bill 2012 will improve the combating of market abuse practices in South Africa. Consequently, it is hoped that the relevant market abuse provisions of the Securities Services Act 36 of 2004, the Financial Markets Bill and/or the Financial Markets Bill 2012 will be comprehensively reviewed in regard to the recommendations made in this thesis. To this end, the thesis proposes a viable anti-market abuse model and policy framework and sets out both policy objectives and provisions which policy makers could use to strengthen some of the market abuse provisions in South Africa.
- Full Text:
- Date Issued: 2012
- Authors: Chitimira, Howard
- Date: 2012
- Subjects: Corporation law -- South Africa , Insider trading in securities -- South Africa , Securities -- South Africa , Efficient market theory , Securities fraud
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10240 , http://hdl.handle.net/10948/d1015008
- Description: Market abuse practices may directly or indirectly give rise to diverse problems such as inaccurate stock market prices, low public investor confidence, reduced market integrity and poor efficiency in the affected financial markets. This thesis reveals that three major forms of market abuse, namely insider trading, prohibited trading practices (trade-based market manipulation) and the making or publication of false, misleading or deceptive statements, promises and forecasts relating to listed securities (disclosure-based market manipulation) are prohibited in South Africa. However, although South Africa has had market abuse legislation for about 30 years, and must be commended for its great effort to enhance market integrity by combating market abuse practices, the enforcement of such legislation is still problematic. Moreover, in spite of the fact that there is no empirical data or accurate figures quantifying the occurrence and extent of market abuse activities in the South African financial markets, this thesis submits that market abuse practices are still to be completely eradicated. Accordingly, this thesis suggests that the aforementioned problem might have been aggravated by inter alia, various gaps, flaws and/or inconsistent implementation and enforcement of the market abuse legislation in South Africa. To this end, the anti-market abuse enforcement framework under the Securities Services Act 36 of 2004 is analysed to investigate its adequacy. The co-operation and role of the Financial Services Board, the courts, the Directorate of Market Abuse and other relevant stakeholders is also examined and discussed. Moreover, the co-operation between the Financial Services Board and similar international agencies is discussed to gauge its effectiveness in relation to the combating of cross-border market abuse practices. The adequacy of the awareness and preventative measures in place to curb market abuse practices is also investigated to determine whether such measures are robust enough to combat other new challenges that were posed by the 2007 to 2009 global financial crisis. Furthermore, a comparative analysis is undertaken of the enforcement of the market abuse prohibition in other jurisdictions, namely the United States of America, the United Kingdom, the European Union and Australia. This was done to investigate the relevant lessons that can be learnt or adopted from these jurisdictions. The thesis further discusses the adequacy of the recently introduced provisions of the Financial Markets Bill as well as the subsequent market abuse provisions of the Financial Markets Bill 2012. The thesis highlights that the aforementioned Bills are positive attempts by the policy makers to improve the enforcement of the market abuse provisions in South Africa. Nonetheless, the thesis reveals that most of the shortcomings contained in the Securities Services Act 36 of 2004 were duplicated in the Financial Markets Bill and the Financial Markets Bill 2012. In light of this, it remains to be seen whether the market abuse provisions contained in the Financial Markets Bill and/or the Financial Markets Bill 2012 will improve the combating of market abuse practices in South Africa. Consequently, it is hoped that the relevant market abuse provisions of the Securities Services Act 36 of 2004, the Financial Markets Bill and/or the Financial Markets Bill 2012 will be comprehensively reviewed in regard to the recommendations made in this thesis. To this end, the thesis proposes a viable anti-market abuse model and policy framework and sets out both policy objectives and provisions which policy makers could use to strengthen some of the market abuse provisions in South Africa.
- Full Text:
- Date Issued: 2012
A comparative analysis of the rights of the child with particular reference to child soldiers
- Authors: Anwo, Joel Olasunkanmi
- Date: 2008
- Subjects: Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11108 , http://hdl.handle.net/10353/102 , Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Description: The recruitment, enlistment and forceful conscription of children as soldiers is a cause for grave concern all over the world and most especially in Africa, where years of factional fighting, civil wars and cross border conflicts have raged, children and youth have been pulled into violence not only as victims, but also as perpetrators. The involvement of children in war posses a severe challenge to prevailing moral and legal norms of the conduct of modern warfare. A major problem and most controversial issue, among others, is on the age at which children should be eligible to become combatants. Children, who may be viewed as a valuable resource due to their often inherent malleability, wish to avenge family member(s) killed in war, sense of immunity to danger, and or feeling of power in participating in the violence. Can the use of children as soldiers be effectively regulated in Africa? All efforts to assist child soldiers in recovering from the devastating effects of wars often unwillingly helped promote the growing number of child soldiers. This is in part because wars are now more fought internally among rebel armies and factions vying for power with the government and thus enlist children into their various armies. The study comes to a conclusion that drastic steps need to be taken to ameliorate this unfortunate situation. This formed the basis of the recommendations offered in the thesis to assist the African continent.
- Full Text:
- Date Issued: 2008
- Authors: Anwo, Joel Olasunkanmi
- Date: 2008
- Subjects: Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11108 , http://hdl.handle.net/10353/102 , Children's rights -- Child welfare -- Demobilization of children , Disarmament -- Reintegration
- Description: The recruitment, enlistment and forceful conscription of children as soldiers is a cause for grave concern all over the world and most especially in Africa, where years of factional fighting, civil wars and cross border conflicts have raged, children and youth have been pulled into violence not only as victims, but also as perpetrators. The involvement of children in war posses a severe challenge to prevailing moral and legal norms of the conduct of modern warfare. A major problem and most controversial issue, among others, is on the age at which children should be eligible to become combatants. Children, who may be viewed as a valuable resource due to their often inherent malleability, wish to avenge family member(s) killed in war, sense of immunity to danger, and or feeling of power in participating in the violence. Can the use of children as soldiers be effectively regulated in Africa? All efforts to assist child soldiers in recovering from the devastating effects of wars often unwillingly helped promote the growing number of child soldiers. This is in part because wars are now more fought internally among rebel armies and factions vying for power with the government and thus enlist children into their various armies. The study comes to a conclusion that drastic steps need to be taken to ameliorate this unfortunate situation. This formed the basis of the recommendations offered in the thesis to assist the African continent.
- Full Text:
- Date Issued: 2008
A comparative exposition of Islamic law relating to the law of husband and wife
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
- Full Text:
- Date Issued: 2020
Constitutionalism and separation of powers in South Africa after the promulgation of the 1996 constitution : a comparative perspective
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
- Full Text:
- Date Issued: 2016
Coordinating legal aid services in civil matters for indigent people in eThekwini: a model for improved access to justice
- Authors: Holness, David Roy
- Date: 2014
- Subjects: Legal assistance to the poor -- South Africa Legal aid services -- South Africa Civil procedure -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/10981 , vital:26864
- Description: The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.
- Full Text:
- Date Issued: 2014
- Authors: Holness, David Roy
- Date: 2014
- Subjects: Legal assistance to the poor -- South Africa Legal aid services -- South Africa Civil procedure -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/10981 , vital:26864
- Description: The South African law and legal system can and should be a mechanism through which the lives of all resident there are enhanced through the safeguarding and advancement of the fundamental rights guaranteed in its Bill of Rights. This thesis focuses on ‘legal aid’ service delivery (broadly speaking) for the indigent in a particular locality by and through registered law clinics, other legal services providers and via other means in civil rather than criminal matters. In this regard there continue to be very substantial differences between the proper access to civil justice requirements of constitutional South Africa and the actual situation which has existed since the dawn of South Africa’s democratic era which continues unabated. Justice and equality are promised to all in South Africa, yet due to gaps in the ‘net’ of free legal services provided to the indigent, the ability to pay for legal services in civil cases often remains the deciding factor. This study examines the constitutional obligations which, it is argued, apply to the provision of free civil legal services to impoverished people in South Africa. This research considers the law as a vector for necessary positive transformation in the daily lives of those resident in South Africa, which is considered within the country’s woefully unequal socio-economic situation. It builds upon existing research and court authority which show the function of access to justice as an important promoter of the type of society envisaged by the South African Constitution - one where the enjoyment of justice and equality are within the reach of all. However, at present, if one can afford the expensive services of lawyers in civil matters, then access to justice is far more readily attainable. But the opposite is true where someone is denied meaningful access to justice through a lack of legal representation because they cannot afford prohibitively high lawyers’ costs (and disbursements) and no adequate alternatives are provided for by the state or through other means. In these circumstances a vulnerable, unrepresented litigant in a civil case faces a greatly increased likelihood of being denied proper access to a daunting and intricate legal system. There are two main reasons for concentrating on free legal services to the ‘needy’ in civil rather than criminal matters. In the first place, all available statistics show that a huge proportion of legal aid services in South Africa has been and continues to be dispensed in criminal rather than civil cases. Secondly, there has been minimal research or case authority in South Africa on legal aid and other free legal services for impoverished people in civil matters. This thesis examines the state of free civil legal service provision and the need for such assistance within the eThekwini Metropolitan Municipality, one of South Africa’s largest metropoles. This analysis includes an empirical study of the requests for free civil legal services in a particular year by qualifying potential clients in eThekwini and the degree to which free legal service providers are meeting or failing to meet those needs. The study considers the legal service provision in such matters by legal non-governmental organisations, state-supported legal service providers and the work of legal professionals in private practice acting pro bono. The thesis then proposes a model for eThekwini for coordinating (and concurrently improving) civil legal aid services, pro bono legal work and other forms of free legal assistance - like community service by senior law students and law graduates - in response to the particular needs and circumstances facing the indigent there. When referring to the concept of ‘legal aid services’, this research concentrates on legal advice, assistance and representation to indigent clients. However, the promotion of legal rights awareness to such clients is often necessary to open their eyes to the possibility of legal avenues, where appropriate, to improve their situations. Therefore this study also considers - albeit to a lesser degree - this more indirect form of legal assistance through the dissemination of legal knowledge in an accessible form to clients who would qualify for legal aid assistance. The work concludes by briefly postulating the likely appropriateness (and/or limitations) of the aforementioned ‘free civil legal service model for the indigent’ beyond eThekwini.
- Full Text:
- Date Issued: 2014
Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text:
- Date Issued: 2020
Enlarging the place of human rights and development in international trade regulation: an evaluation of the problems and prospects of incorporating a social clause in the legal framework of the World Trade Organization
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
- Authors: Warikandwa, Tapiwa Victor
- Date: 2012
- Subjects: Social Clause -- Development -- International Trade Regulation -- Human Rights -- World Trade Organization
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11120 , http://hdl.handle.net/10353/d1015224
- Description: An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
- Full Text:
- Date Issued: 2012
Hate speech as a limitation to freedom of expression
- Authors: Botha, Joanna Catherine
- Date: 2016
- Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/9054 , vital:26460
- Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
- Full Text:
- Date Issued: 2016
- Authors: Botha, Joanna Catherine
- Date: 2016
- Subjects: Freedom of speech -- South Africa , Hate speech -- South Africa , Civil rights -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/9054 , vital:26460
- Description: Hate speech in South Africa creates a tension between the right to freedom of expression and the rights to human dignity and equality. The challenge is to achieve a balance between these competing rights in the context of the divisive past and the transformative constitutional ideal, in which reconciliation and respect for group difference are promoted. Freedom of expression, an individual right, must be construed in light of its underlying values, but regard must also be given to communitarian interests. The constitutional standard draws the initial line. The advocacy of hatred on four grounds and which constitutes incitement to cause harm is not constitutionally protected speech. Such speech undermines nation building, causes acrimony, and is not tolerated in the egalitarian society envisaged by the Constitution. The thesis formulates a principled legislative hate speech framework for South Africa at both human rights and criminal levels within the parameters of the constitutional mandate, as guided by the standard for hate speech restrictions in international law, and the Canadian regulatory model. An essential premise is that regulation requires a multi-faceted balancing enquiry. A holistic approach is proposed where factors such as respect for the dignity of the victims, autonomy for speakers, listeners and the wider community; the causal link between hate speech and hatred in a community; and the desire to achieve a diverse and harmonious society; amongst others, are considered. Failure to regulate hate speech constructively endorses hatemongers and promotes damaging speech at the expense of vulnerable groups. Regulation ensures that law sets the normative benchmark, affirms the protection of vulnerable groups within the social fabric and upholds social cohesion, inclusiveness and the equal citizenship of all individuals in society. The thesis contains a proposal for the enactment of legislation creating a self-standing hate speech crime for the advocacy of extreme hatred, shaped in accordance with international requirements and comparative foreign law, and structured in light of the distinction between hate crime and hate speech. The existing legal framework is unable to provide consistent and fitting redress for the severe harm caused by such speech, namely the fostering of an environment in which the stigmatisation of groups is promoted, their exclusion from society justified and intervention is needed to remedy the escalated levels of hatred and violence between different groups in society. PEPUDA, a remedial statute aimed at promoting transformation and substantive equality, is valuable, but its speech prohibitions are broad and imprecise. Consequently, their effectiveness is compromised and their constitutionality questioned. The thesis proposes recommendations for amendments to sections 7(a), 10(1) and 12 of PEPUDA. The aim is to ensure compliance with the international standard and to foster the optimal regulation of hate speech and other forms of damaging speech, including derogatory racial epithets, which undermine human dignity and equality and threaten national unity. It is intended for the two systems to complement one another and to create a legal framework aimed at addressing hate speech constructively and in context, promoting tolerance, respect for difference, reconciliation and transformation.
- Full Text:
- Date Issued: 2016
In search of a regime of responsibility and accountability for perpetrators of torture with reference to persons with special responsibility for protecting human rights
- Authors: Odeku, Kolawole Olusola
- Date: 2008
- Subjects: Human rights -- Accountability -- Perpetrators of torture -- Torture
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11112 , http://hdl.handle.net/10353/101 , Human rights -- Accountability -- Perpetrators of torture -- Torture
- Description: orture is a serious violation of human rights and it is strictly prohibited by numerous human rights instruments. The prohibition of torture enshrines one of the most fundamental values of a democratic society. Its prohibition in a national constitution commits the country, and specifically its law enforcement officers, to performing their duties with due regard to the essential dignity of every human being. The irony is that the law enforcement officials and the security agents who are entrusted with the responsibility of maintaining law and order in the society sometimes breach the law which they have sworn to uphold. Most of the perpetrators of acts of torture are usually those in positions of state power. In addition, other persons who wield other forms of authority or influence also perpetrate torture. It is contended that both civil and criminal responsibilities of the perpetrators should be explored by bringing them to justice in order to serve as deterrence to others. Despite being stringently outlawed, torture continues to be practised in many countries in the world. The underlying assumption is that, although the prohibition of torture has become part of customary international law, the practice of torture remains widespread. Torturers and those who order or encourage torturers to ply their trade or acquiesce in their doing so, enjoy virtual impunity from prosecution within their own jurisdictions. In many cases, the majority of the torturers go unpunished because they are, most often than not, agents or officials of the state. Nowadays, there are various international human rights instruments prohibiting torture. Violations of the provisions of these instruments by states or individuals will attract necessary and appropriate sanction. The erring state or individual will be held accountable and if found liable, sanctions as contained in the instruments banning torture will be invoked accordingly. It must be stressed that condemnation of torture is universal and its prohibition forms not only part of customary international law, but has joined that narrow category of crimes so egregious as to demand universal criminal jurisdiction. There is no save haven for perpetrators because the various mechanisms and adjudicating bodies of state parties and the United Nations have competent jurisdictions to right the wrong. Furthermore, it must be stressed that there can be no justification for torture because CAT and other important international human rights instruments assume increasing importance tools which have realistic prospects for eliminating torture.
- Full Text:
- Date Issued: 2008
- Authors: Odeku, Kolawole Olusola
- Date: 2008
- Subjects: Human rights -- Accountability -- Perpetrators of torture -- Torture
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:11112 , http://hdl.handle.net/10353/101 , Human rights -- Accountability -- Perpetrators of torture -- Torture
- Description: orture is a serious violation of human rights and it is strictly prohibited by numerous human rights instruments. The prohibition of torture enshrines one of the most fundamental values of a democratic society. Its prohibition in a national constitution commits the country, and specifically its law enforcement officers, to performing their duties with due regard to the essential dignity of every human being. The irony is that the law enforcement officials and the security agents who are entrusted with the responsibility of maintaining law and order in the society sometimes breach the law which they have sworn to uphold. Most of the perpetrators of acts of torture are usually those in positions of state power. In addition, other persons who wield other forms of authority or influence also perpetrate torture. It is contended that both civil and criminal responsibilities of the perpetrators should be explored by bringing them to justice in order to serve as deterrence to others. Despite being stringently outlawed, torture continues to be practised in many countries in the world. The underlying assumption is that, although the prohibition of torture has become part of customary international law, the practice of torture remains widespread. Torturers and those who order or encourage torturers to ply their trade or acquiesce in their doing so, enjoy virtual impunity from prosecution within their own jurisdictions. In many cases, the majority of the torturers go unpunished because they are, most often than not, agents or officials of the state. Nowadays, there are various international human rights instruments prohibiting torture. Violations of the provisions of these instruments by states or individuals will attract necessary and appropriate sanction. The erring state or individual will be held accountable and if found liable, sanctions as contained in the instruments banning torture will be invoked accordingly. It must be stressed that condemnation of torture is universal and its prohibition forms not only part of customary international law, but has joined that narrow category of crimes so egregious as to demand universal criminal jurisdiction. There is no save haven for perpetrators because the various mechanisms and adjudicating bodies of state parties and the United Nations have competent jurisdictions to right the wrong. Furthermore, it must be stressed that there can be no justification for torture because CAT and other important international human rights instruments assume increasing importance tools which have realistic prospects for eliminating torture.
- Full Text:
- Date Issued: 2008
Intercountry adoption and alternative care in South Africa: a model for determining placement in the best interests of the child
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
- Authors: Van der Walt, Glynis Trow
- Date: 2019
- Subjects: Intercountry adoption -- South Africa , ntercountry adoption -- Law and legislation Interethnic adoption -- South Africa Interracial adoption -- South Africa Children (International law) Children -- Legal status, laws, etc
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/44202 , vital:37129
- Description: The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right.
- Full Text:
- Date Issued: 2019
Labour dispute resolution in Kenya: compliance with international standards and a comparison with South Africa
- Authors: Gathongo, Johana Kambo
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa , Dispute resolution (Law) – Kenya , Mediation and conciliation, Industrial -- Kenya , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Kenya
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/23980 , vital:30657
- Description: The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2018
- Authors: Gathongo, Johana Kambo
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa , Dispute resolution (Law) – Kenya , Mediation and conciliation, Industrial -- Kenya , Arbitration, Industrial -- South Africa , Arbitration, Industrial -- Kenya
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/23980 , vital:30657
- Description: The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
- Full Text:
- Date Issued: 2018
Maritime piracy legislation for Nigeria
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
Principles of South African prison law and proposals for their implementation
- Authors: Hornigold, Angus Lloyd
- Date: 2013
- Subjects: Prisons -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10297 , http://hdl.handle.net/10948/d1021033
- Description: There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
- Full Text:
- Date Issued: 2013
- Authors: Hornigold, Angus Lloyd
- Date: 2013
- Subjects: Prisons -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10297 , http://hdl.handle.net/10948/d1021033
- Description: There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners. As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but ofttimes caused by the belief that harsh conditions of detention are a deterrent to wouldbe offenders. The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody. It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law. Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
- Full Text:
- Date Issued: 2013
Redress for victims of crime in South Africa: a comparison with selected Commonwealth jurisdictions
- Von Bonde, Johannes Christian
- Authors: Von Bonde, Johannes Christian
- Date: 2006
- Subjects: Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10268 , http://hdl.handle.net/10948/640 , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.
- Full Text:
- Date Issued: 2006
- Authors: Von Bonde, Johannes Christian
- Date: 2006
- Subjects: Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10268 , http://hdl.handle.net/10948/640 , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.
- Full Text:
- Date Issued: 2006
The Business Trust and its role as an entity in the financial environment
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
- Authors: Nel, Ebenhaeser Cornelis
- Date: 2012
- Subjects: Trusts and trustees -- South Africa , Corporations -- Taxation -- Law and legislation -- South Africa , Asset-backed financing -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10250 , http://hdl.handle.net/10948/d1020175
- Description: The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
- Full Text:
- Date Issued: 2012
The customary law practice of ukuthwala – an antithesis in the South African constitutional order
- Jokani, Mkhuseli Christopher
- Authors: Jokani, Mkhuseli Christopher
- Date: 2018
- Subjects: Customary law -- South Africa , Culture -- Legal status, laws, etc -- South Africa Forced marriage -- Legal status, laws, etc -- South Africa Teenage marriage -- South Africa -- Eastern Cape Xhosa (African people) -- Law and legislation -- Social life and customs
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/22474 , vital:29973
- Description: The concept of ukuthwala is an age-old customary marriage practice prevalent amongst the Nguni speaking tribes of South Africa. It is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. The SABC and E-tv evening television news coverage of 15th March 2009 reported the prevalence of forced and child marriages of young girls with elderly men in the East Pondoland of the Eastern Cape. The question arose as to whether the custom of ukuthwala could be justified as a legitimate cultural practice in the context of a modern constitutional democracy because some view it as an outdated customary practice that targets girl children, while others view it as a legitimate cultural practice. Since ukuthwala cannot be treated as a unitary phenomenon, variants of the practice must be distinguished. The thesis reveals that there are three variants of ukuthwala, which are ukuthwala ngemvumelwano, ukuthwala kobolawu and ukuthwala okungenamvumelwano. The thesis concludes by drawing a distinction between ukuthwala, forced marriage and child marriage. It proposes that ukuthwala in its traditional form is not synonymous with forced marriage and child marriage. The thesis poses the following main legal questions, namely: does the South African criminal jurisprudence criminalise ukuthwala, and if so, on what charges are perpetrators tried; and how is the inherent conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution, resolved? The thesis responds to these questions as follows. Firstly, it is suggested that ukuthwala in itself is not a formally defined crime, but a customary law practice resorted to by the prospective suitor to force the parents of the young woman into marriage negotiations. However, in recent times the practice has been abused and distorted which borders on the commission of a criminal offence and the violation of the young woman’s human rights. The criminal offences that are committed because of the distorted form of ukuthwala are both in terms of the common and statutory laws of South Africa. The thesis suggests that those found guilty of committing a crime under the pretext of customary law practice of ukuthwala should be punished. South Africa has a number of statutory as well as common law provisions, which can be used to prosecute those found to have committed offences. South Africa does not need to outlaw and criminalise ukuthwala in its entirety but does need to distinguish between the distorted and the traditional forms of ukuthwala. The thesis responds to the second main question as follows. Firstly, the violation of the young woman’s human rights brings to the fore a conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution. The thesis makes a distinction between the three variants of ukuthwala customary practices and concludes that ukuthwala ngemvumelwano is the most acceptable form because it takes place when there is mutual consent between parties. It further proposes that the positive elements within the customary law practice of ukuthwala must be developed and promoted provided that they are consistent with the provisions of the Constitution. However, the negative elements that conflict with provisions of the Constitution should be done away with. The thesis suggests that the latter approach is important to addressing the conflict between ukuthwala customary practice and the Bill of Rights. The thesis concludes by suggesting that the distorted form of subjecting young women and girl children into forced marriages under the pretext of the customary law practice of ukuthwala are unconstitutional and cannot be justified in terms of sections 30 and 31 of the Constitution. Therefore, ukuthwala customary law practice is not free from criticism if one considers the two variants of ukuthwala where there has been no consent from one of the parties concerned. A comparative analysis is undertaken with selected Southern African Development Community countries to establish similarities in practices related to ukuthwala and how the consequent contradictions between customary law and common law have been dealt with. The thesis concludes that ukuthwala is a unique South African customary practice that is different from other customary practices in some selected jurisdictions. Therefore, the comparative analysis has helped in identifying how poverty perpetuates the different but related, customary law practices across the selected jurisdictions. Therefore, in order for Mother Africa to adequately respond to the harmful traditional practices there is a need to address the socio-economic issues particularly in the rural parts of Africa. The harmful traditional practices seem to be more common in the rural parts of the selected jurisdictions rather than in urban and semi-urban areas. The lesson learnt is that social development should have a particular bias towards the rural areas of Africa. The findings, amongst others, are that ukuthwala in its traditional form is a legitimate customary law practice which was often resorted to when obstacles arose in order to force the parents of the young woman to negotiate marriage. Ukuthwala is not synonymous with forced and early marriages. The thesis recommends that South Africa does not need to outlaw ukuthwala despite the fact that it has now been abused and distorted. It is argued that there are sufficient statutory and common laws to respond to the scourge of distorted versions of ukuthwala in South Africa. The thesis recommends that South Africa with its plural legal system should highlight the supremacy of the Constitution aligned with international human rights standards to avoid conflict in legal interpretation and implementation. It is hoped that this will assist in the implementation of the positive aspects of African customary law within the legal system and will remove the negative elements that infringe on the rights of women and children. It is recommended that it would be useful to pursue non-legislative measures to deal comprehensively with the causes of ukuthwala and its consequences by investing in education, training and awareness raising campaigns among sectors of society, most importantly rural people. Education, when employed, should not be an event but a process that will start at school level and extend to post-university. The emphasis should be on the inclusion of gender studies from early grades to undo the mentality of male superiority and entrench an equality attitude between boys and girls from a very early age. The reason for this suggestion is that attitudes manifested in our society always portray girls and women as being weak and therefore not equal to boys and men. It is important to ensure that role-players in the fight against gender-based violence are adequately trained to equip them to handle these cases properly. These role-players include South African Police Service members, National Prosecuting Authority, Judiciary and Non-Governmental Organisations to mitigate secondary victimisation of victims of these distorted cultural practices.
- Full Text:
- Date Issued: 2018
- Authors: Jokani, Mkhuseli Christopher
- Date: 2018
- Subjects: Customary law -- South Africa , Culture -- Legal status, laws, etc -- South Africa Forced marriage -- Legal status, laws, etc -- South Africa Teenage marriage -- South Africa -- Eastern Cape Xhosa (African people) -- Law and legislation -- Social life and customs
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/22474 , vital:29973
- Description: The concept of ukuthwala is an age-old customary marriage practice prevalent amongst the Nguni speaking tribes of South Africa. It is a practice whereby, preliminary to a customary marriage, a young man, by force, takes a girl to his home. The SABC and E-tv evening television news coverage of 15th March 2009 reported the prevalence of forced and child marriages of young girls with elderly men in the East Pondoland of the Eastern Cape. The question arose as to whether the custom of ukuthwala could be justified as a legitimate cultural practice in the context of a modern constitutional democracy because some view it as an outdated customary practice that targets girl children, while others view it as a legitimate cultural practice. Since ukuthwala cannot be treated as a unitary phenomenon, variants of the practice must be distinguished. The thesis reveals that there are three variants of ukuthwala, which are ukuthwala ngemvumelwano, ukuthwala kobolawu and ukuthwala okungenamvumelwano. The thesis concludes by drawing a distinction between ukuthwala, forced marriage and child marriage. It proposes that ukuthwala in its traditional form is not synonymous with forced marriage and child marriage. The thesis poses the following main legal questions, namely: does the South African criminal jurisprudence criminalise ukuthwala, and if so, on what charges are perpetrators tried; and how is the inherent conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution, resolved? The thesis responds to these questions as follows. Firstly, it is suggested that ukuthwala in itself is not a formally defined crime, but a customary law practice resorted to by the prospective suitor to force the parents of the young woman into marriage negotiations. However, in recent times the practice has been abused and distorted which borders on the commission of a criminal offence and the violation of the young woman’s human rights. The criminal offences that are committed because of the distorted form of ukuthwala are both in terms of the common and statutory laws of South Africa. The thesis suggests that those found guilty of committing a crime under the pretext of customary law practice of ukuthwala should be punished. South Africa has a number of statutory as well as common law provisions, which can be used to prosecute those found to have committed offences. South Africa does not need to outlaw and criminalise ukuthwala in its entirety but does need to distinguish between the distorted and the traditional forms of ukuthwala. The thesis responds to the second main question as follows. Firstly, the violation of the young woman’s human rights brings to the fore a conflict between the customary law practice of ukuthwala and the Bill of Rights enshrined in the Constitution. The thesis makes a distinction between the three variants of ukuthwala customary practices and concludes that ukuthwala ngemvumelwano is the most acceptable form because it takes place when there is mutual consent between parties. It further proposes that the positive elements within the customary law practice of ukuthwala must be developed and promoted provided that they are consistent with the provisions of the Constitution. However, the negative elements that conflict with provisions of the Constitution should be done away with. The thesis suggests that the latter approach is important to addressing the conflict between ukuthwala customary practice and the Bill of Rights. The thesis concludes by suggesting that the distorted form of subjecting young women and girl children into forced marriages under the pretext of the customary law practice of ukuthwala are unconstitutional and cannot be justified in terms of sections 30 and 31 of the Constitution. Therefore, ukuthwala customary law practice is not free from criticism if one considers the two variants of ukuthwala where there has been no consent from one of the parties concerned. A comparative analysis is undertaken with selected Southern African Development Community countries to establish similarities in practices related to ukuthwala and how the consequent contradictions between customary law and common law have been dealt with. The thesis concludes that ukuthwala is a unique South African customary practice that is different from other customary practices in some selected jurisdictions. Therefore, the comparative analysis has helped in identifying how poverty perpetuates the different but related, customary law practices across the selected jurisdictions. Therefore, in order for Mother Africa to adequately respond to the harmful traditional practices there is a need to address the socio-economic issues particularly in the rural parts of Africa. The harmful traditional practices seem to be more common in the rural parts of the selected jurisdictions rather than in urban and semi-urban areas. The lesson learnt is that social development should have a particular bias towards the rural areas of Africa. The findings, amongst others, are that ukuthwala in its traditional form is a legitimate customary law practice which was often resorted to when obstacles arose in order to force the parents of the young woman to negotiate marriage. Ukuthwala is not synonymous with forced and early marriages. The thesis recommends that South Africa does not need to outlaw ukuthwala despite the fact that it has now been abused and distorted. It is argued that there are sufficient statutory and common laws to respond to the scourge of distorted versions of ukuthwala in South Africa. The thesis recommends that South Africa with its plural legal system should highlight the supremacy of the Constitution aligned with international human rights standards to avoid conflict in legal interpretation and implementation. It is hoped that this will assist in the implementation of the positive aspects of African customary law within the legal system and will remove the negative elements that infringe on the rights of women and children. It is recommended that it would be useful to pursue non-legislative measures to deal comprehensively with the causes of ukuthwala and its consequences by investing in education, training and awareness raising campaigns among sectors of society, most importantly rural people. Education, when employed, should not be an event but a process that will start at school level and extend to post-university. The emphasis should be on the inclusion of gender studies from early grades to undo the mentality of male superiority and entrench an equality attitude between boys and girls from a very early age. The reason for this suggestion is that attitudes manifested in our society always portray girls and women as being weak and therefore not equal to boys and men. It is important to ensure that role-players in the fight against gender-based violence are adequately trained to equip them to handle these cases properly. These role-players include South African Police Service members, National Prosecuting Authority, Judiciary and Non-Governmental Organisations to mitigate secondary victimisation of victims of these distorted cultural practices.
- Full Text:
- Date Issued: 2018
The Impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa
- Authors: Gwarinda, T A
- Date: 2013
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/1421 , vital:26554
- Description: The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
- Full Text:
- Date Issued: 2013
- Authors: Gwarinda, T A
- Date: 2013
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/1421 , vital:26554
- Description: The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
- Full Text:
- Date Issued: 2013
The impact of the Consumer Protection Act, 2008 on the accomodation segment of the tourism industry
- Authors: Tait, Andrew Mark
- Date: 2012
- Subjects: South Africa -- Consumer Protection Act, 2008 , Consumer protection -- Law and legislation -- South Africa , Tourism
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10247 , http://hdl.handle.net/10948/d1019922
- Description: The tourism industry is critically important for the economic well-being of South Africa. This realisation elicited a greater focus on the industry, including greater government regulation thereof. Although the concept of a tourist (consumer of tourism services) will not readily conjure up someone in need of protection, tourists are often exposed to exploitation through unfair business practices. Tourists, by definition, are outside their normal places of residence and often strangers to the environment within which they find themselves. For the important tourism industry to achieve its economic potential the protection of the tourist must be paramount. The introduction of the Consumer Protection Act, 2008 in 2010 was heralded as a new dawn for consumers. The CPA provides consumers, including domestic and foreign tourists, with extensive consumer rights. As the CPA is the first comprehensive legislation aimed at consumer protection the impact of the Act is far from known. The CPA caused considerable uncertainty in the tourism industry establishing a clear need to determine its impact on the segments of the industry. This study focuses on the accommodation segment. The aim of the study therefore is to ascertain the impact of selected consumer rights on the accommodation segment of the tourism industry. An overview of the tourism industry reveals that tourists are becoming more experienced, demanding and discerning. The regulation of the industry is explained. Particularly relevant are latest developments in South Africa, particularly the Draft Tourism Bill, 2011 and the National Tourism Sector Strategy. The consumer protection regime applicable prior to the coming into effect of the CPA was characterised more by ad hoc legislative arrangements than any systematic programme of consumer protection. Consumers were reliant on the common law. However, as part of a larger scheme to improve the socio-economic well-being of the people of South Africa, the government introduced a number of statutes including the CPA. The CPA introduced wide-ranging rights for the protection of consumers and mechanisms to provide effective redress. Selected consumer rights are critically analysed to assess the impact of these rights on the accommodation segment. These include the consumer’s right to equality in the market place; the right to privacy; the right to cancel advance bookings; the right to documentation in plain language; the right to quality service; and the right that a supplier having possession of the property of guest must account for such property. Another important aspect relates to the use of exemption provisions. The use of exemption provisions by suppliers is severely curtailed by the CPA. The use of prepaid vouchers, trade coupons and similar promotions, and customer loyalty programmes are also considered and the rights and obligations for consumers and suppliers respectively are elucidated. Many of the rights considered will have a significant impact on accommodation establishments. Elsewhere the impact may not appear to be as significant as the CPA is merely codifying an existing right or remedy. However, codifying the right, providing examples of the conduct prohibited and providing enforcement mechanisms will increase the efficacy of these rights.
- Full Text:
- Date Issued: 2012
- Authors: Tait, Andrew Mark
- Date: 2012
- Subjects: South Africa -- Consumer Protection Act, 2008 , Consumer protection -- Law and legislation -- South Africa , Tourism
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10247 , http://hdl.handle.net/10948/d1019922
- Description: The tourism industry is critically important for the economic well-being of South Africa. This realisation elicited a greater focus on the industry, including greater government regulation thereof. Although the concept of a tourist (consumer of tourism services) will not readily conjure up someone in need of protection, tourists are often exposed to exploitation through unfair business practices. Tourists, by definition, are outside their normal places of residence and often strangers to the environment within which they find themselves. For the important tourism industry to achieve its economic potential the protection of the tourist must be paramount. The introduction of the Consumer Protection Act, 2008 in 2010 was heralded as a new dawn for consumers. The CPA provides consumers, including domestic and foreign tourists, with extensive consumer rights. As the CPA is the first comprehensive legislation aimed at consumer protection the impact of the Act is far from known. The CPA caused considerable uncertainty in the tourism industry establishing a clear need to determine its impact on the segments of the industry. This study focuses on the accommodation segment. The aim of the study therefore is to ascertain the impact of selected consumer rights on the accommodation segment of the tourism industry. An overview of the tourism industry reveals that tourists are becoming more experienced, demanding and discerning. The regulation of the industry is explained. Particularly relevant are latest developments in South Africa, particularly the Draft Tourism Bill, 2011 and the National Tourism Sector Strategy. The consumer protection regime applicable prior to the coming into effect of the CPA was characterised more by ad hoc legislative arrangements than any systematic programme of consumer protection. Consumers were reliant on the common law. However, as part of a larger scheme to improve the socio-economic well-being of the people of South Africa, the government introduced a number of statutes including the CPA. The CPA introduced wide-ranging rights for the protection of consumers and mechanisms to provide effective redress. Selected consumer rights are critically analysed to assess the impact of these rights on the accommodation segment. These include the consumer’s right to equality in the market place; the right to privacy; the right to cancel advance bookings; the right to documentation in plain language; the right to quality service; and the right that a supplier having possession of the property of guest must account for such property. Another important aspect relates to the use of exemption provisions. The use of exemption provisions by suppliers is severely curtailed by the CPA. The use of prepaid vouchers, trade coupons and similar promotions, and customer loyalty programmes are also considered and the rights and obligations for consumers and suppliers respectively are elucidated. Many of the rights considered will have a significant impact on accommodation establishments. Elsewhere the impact may not appear to be as significant as the CPA is merely codifying an existing right or remedy. However, codifying the right, providing examples of the conduct prohibited and providing enforcement mechanisms will increase the efficacy of these rights.
- Full Text:
- Date Issued: 2012