The extent to which review for unreasonableness is meaningfully incorporated in the promotion of Administrative Justice Act no. 3 of 2000
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
- Authors: Bednar, Jeannine
- Date: 2006
- Subjects: Administrative law Administrative law -- South Africa Judicial review of administrative acts -- South Africa Law reform -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3707 , http://hdl.handle.net/10962/d1006515
- Description: Prior to the current constitutional dispensation, the development of South African administrative law was restricted by the doctrine of Parliamentary Sovereignty. Even in that comparatively 'hostile' environment, review for unreasonableness developed as an aspect of judicial review, and was applied as a check on the exercise of administrative power in certain circumstances. The principle of proportionality as an aspect of review for unreasonableness also developed during this period. With the advent of the new Constitutional dispensation, the framework within which administrative law in South Africa operates became one governed by Constitutional Supremacy. The Rights to Just Administrative Action, including a right to reasonable administrative action, were entrenched in the Constitution. Review for unreasonableness is an important aspect of administrative law in the present Constitutional dispensation as the mechanism for protecting the Constitutional right to reasonable administrative action. Proportionality is an important principle underlying the Bill of Rights as a whole, and it is an important aspect of the right to reasonable administrative action, and of review for unreasonableness. In early 2000, the Promotion of Administrative Justice Act No. 3 of 2000 ("the PAJA"), was passed by Parliament in fulfillment of the Constitutional requirement to pass legislation to give effect to the constitutional rights to Just Administrative Action. This thesis examines whether or not review for unreasonableness, and proportionality as an aspect of review for unreasonableness, have been meaningfully incorporated in the PAJA, and if they have not been, what potential remedies there might be. This is done by examining the basis of judicial review both before and under the current constitutional dispensation; defining unreasonableness, and proportionality; examining the content of the right to administrative action which is "justifiable in relation to the reasons given" in section 24(d) of the Interim Constitution and the right to reasonable administrative action in terms of section 33(1) of the Final Constitution; examining the application of review for unreasonableness and proportionality by the Courts both before and under the current constitutional dispensation; examining the content of judicial review incorporated in the PAJA and the drafting history of section 6(2) of the PAJA which relates to review for unreasonableness; drawing conclusions regarding whether or not review for unreasonableness and proportionality were meaningfully incorporated in the PAJA; and finally making recommendations with regard to review for unreasonableness and proportionality in light of the provisions of the PAJA.
- Full Text:
The cost of credit in the micro-finance industry in South Africa
- Authors: Campbell, Jonathan
- Date: 2007
- Subjects: Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3667 , http://hdl.handle.net/10962/d1003182 , Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Description: This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.
- Full Text:
- Authors: Campbell, Jonathan
- Date: 2007
- Subjects: Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3667 , http://hdl.handle.net/10962/d1003182 , Contracts -- South Africa , Credit -- Law and legislation -- South Africa , Microfinance -- South Africa , Usury laws -- South Africa
- Description: This thesis analyses the cost of credit in the micro-finance industry in South Africa. The study situates micro-lending agreements within the law of contract, beginning with an examination of contractual fairness in terms of the common law: the fundamental principle of freedom of contract that underpins the common law of contract; the principle that agreements contrary to public policy should not be enforced; and the impetus given by constitutional values that inform public policy. In regard to moneylending transactions, common law usury law will be explained. The study then goes on to trace the origins and rapid growth of the micro-finance industry which was made possible by its exemption in 1992 from the Usury Act 73 of 1968. The upshot of this development was that registered micro-lenders have for nearly 14 years charged excessive interest rates, and continue to do so. The dire socio-economic impact of these high interest rates on individual consumers and lowincome communities is then demonstrated: how borrowers of small loans soon become over-indebted; the loss of billions of rands every year to low-income communities in the form of interest on micro-loans. The study then shifts to the legislative response to the need for consumer protection in regard to consumer credit. The extensive credit law review process is explained, resulting ultimately in the National Credit Act 34 of 2005, which allows the Minister to prescribe limits on interest rates and fees in all sectors of the consumer credit market. The prescribed limits on the cost of credit in the micro-finance sector are thoroughly explained and analysed, with particular reference to the implications of each element of the credit costing structure, and the combined impact of the total cost of credit on different types and sizes of loans. The envisaged maximum interest and fees will markedly alter the positions of micro-lenders and consumers, and receive careful analysis. The study closes with a summary of findings in the thesis, which includes suggested amendments to the National Credit Regulations and a review of possible legal challenges to the high cost of credit on smaller loans.
- Full Text:
Insubordination in the workplace
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
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The principle of distinction and modern armed conflicts: a critical analysis of the protection regime based on the distinction between civilians and combatants under international humanitarian law
- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
- Full Text:
- Authors: Chigowe, Lloyd Tonderai
- Date: 2017
- Subjects: Humanitarian law , Military art and science -- Law and legislation , Combatants and noncombatants (International law) , Military law , National security -- Law and legislation , Private military companies (International law) , Human rights -- International cooperation , Soft law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/4668 , vital:20710
- Description: This thesis interrogates the applicability of the principle of distinction in modern armed conflicts. The distinction between combatants and civilians and between civilian objects and military objectives has become blurred as a result of the changes that have taken place in modern armed conflicts. While the principle of distinction was tailor made to regulate traditional, conventional armed conflicts, an evolution in the nature, means and methods of warfare has made the application of the principle of distinction challenging. One of the challenges that arise as a result of the changes that have taken place in modern armed conflicts include the difficulty of distinguishing civilians and civilian objects, which are entitled to protection under international humanitarian law from combatants and military objectives which are legitimate targets. This has compromised the protection that the law seeks to offer during armed conflicts since civilians and civilian objects have become constant targets. Another challenge is that the involvement of civilian persons in armed conflicts has made it difficult to determine the responsibility of these individuals as well as the states that hire them for violations of international law during armed conflicts. Furthermore, the emergence of new methods of warfare has resulted in many objects and facilities that are traditionally regarded as civilian objects becoming military objectives, thus losing their protection under international humanitarian law. This thesis will use the examples of the involvement of private military and security companies in armed conflicts as well as the emergence of drone and cyber warfare to illustrate these challenges. The study will examine the application of the principle of distinction to the growing practice of outsourcing of military services to Private Military and Security Companies. Firstly, the study will examine the status of PMSC personnel under the principle of distinction, that is whether they qualify as combatants or civilians. The study will then examine the consequences of PMSC personnel’s participation in armed conflicts. Importantly, the study will explore responsibilities of states that hire private military and security personnel, PMSC companies as well as superiors in charge of PMSC personnel for any violation of international law committed by contractors during armed conflicts. The study will also examine the application of the principle of distinction to drone and cyber warfare. The study will examine the status of drone and cyber operators under the principle of distinction as well as the applicability of the principle of distinction between civilian objects and military objectives in drone and cyber warfare. The study will discuss some of the problems that arise as result of the introduction of these new methods of warfare, which makes the application of the principle of distinction to modern armed conflicts challenging. The thesis concludes by arguing that while the principle of distinction remains an indispensable concept of international humanitarian law, it needs to be adapted for it to be applicable to modern armed conflicts. Therefore, suggestions shall be made on how the principle can be adapted to ensure that it remains relevant to modern armed conflicts.
- Full Text:
The regulation of subsidies and regional trade among developing countries in the multilateral trading system: the case of export processing zones in Malawi
- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
- Full Text:
- Authors: Chirwa, Watson Pajanji
- Date: 2018
- Subjects: Trade regulation -- Malawi , Subsidies -- Law and legislation -- Malawi , Southern African Development Community , Common Market for Eastern and Southern Africa , Foreign trade regulation -- Malawi , Export processing zones -- Law and legislation -- Malawi
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/62428 , vital:28175
- Description: The paradigm shift engaged by countries in SADC and COMESA, such as Malawi, from the use of import substitution policies which were aimed at protecting their infant industries, to export led growth strategies, necessitated these developing countries to liberalise their economies. The liberalisation of these economies meant that, for them to attain development, they needed to trade more on the international market. However, with underdeveloped industries and a lack of local entrepreneurs who could provide export supplies to fill the void created by the liberalisation policies, developing countries had to look beyond their borders for investors. In pursuit of this objective, governments have been devising ways of attracting foreign direct investment which can stimulate export growth. One of the methods employed is the granting of investment incentives to would-be investors. Unlike developed countries who provide investment incentives in the form of financial incentives, developing countries grant fiscal incentives. These are incentives that reduce tax burdens of enterprises to induce them to invest in particular projects or sectors. One of the mediums of providing the incentives adopted by the developing countries is the use of EPZ schemes. EPZs provide incentives such as exemptions of direct and indirect taxes to companies that operate in the zones. However, being Members of the WTO and SADC and/or COMESA, these countries are bound by obligations regulating trade and investment as found in these Agreements. The expectation is that the fiscal incentives employed in the EPZs do not grant subsidies that are prohibited under the SCM Agreement and rules regulating subsidies in SADC and COMESA. In addition, even though the use of EPZs is not expressly proscribed under the SADC Protocol on Trade, it may be against the objectives of the Protocol - one of which is the pursuance of the inter-jurisdictional goal of cooperation in attainment of free trade among its members. Therefore, this study assesses whether the use of EPZs by some countries in the two RTAs (particularly Malawi) is in tandem with the subsidies regulation as found in the multilateral trading system and at regional level. It also assesses whether, if there is a breach of the same, it might be justified as part of the special and differential treatment accorded to developing countries by developed countries under the WTO. The study further assesses whether the use of EPZs might be against the spirit and objects of FTAs such as SADC.
- Full Text:
Rights to reality - the right to social security, with particular emphasis on the legal resources centre's welfare project in the Eastern Cape
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
- Full Text:
- Authors: Delany, Mairéad Christine
- Date: 2003
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:21027 , http://hdl.handle.net/10962/6052
- Description: This research addresses the question of whether the courts have been used effectively to enforce the right to social security in the Eastern Cape. The nature of the right to social security is discussed and placed in the context of constitutional developments in South Africa and South Africa's obligations in terms of international law. The enforcement of socio-economic rights and legislation regarding social assistance is also discussed in detail, along with the problems associated with the social security system such as the gaps in the system, the impact of HIV / AIDS and the problems created by the amalgamation of various administrations. The history of the Legal Resources Centre, a non-governmental organisation which has been involved in public interest law for twenty four years, is detailed. The Grahamstown office's litigation campaign against the Eastern Cape Department of Welfare is then discussed and six landmark cases are analysed in detail. A discussion of the jurisprudential significance and impact of each case on the development of South African administrative and constitutional law follows. A series of stories reported in the press illustrate the human aspect of the campaign and balance the legal argument. These stories may suggest that the Constitution's commitment to social justice and the government's commitment to the principles of Batho Pete are merely noble ideals for many people in the province, but it is argued that the LRC's campaign has made a vast contribution towards making these ideals a reality on the ground. The expert opinions of various groups interviewed during the course of this research regarding the impact of the LRC's litigation campaign are discussed, and the conclusion is drawn that it has indeed had a positive effect. They include paralegals at Advice Offices around the province, legal practitioners from the LRC, a private legal practitioner, several representatives of the Black Sash, a former MEC for Health and Welfare in the Eastern Cape Provincial Government, an official from the Department, and a leader of the Anglican Church in the province. In conclusion it is submitted that, but for the LRC's litigation campaign, the situation in the Eastern Cape would not have improved to the extent it has and may even have deteriorated further. Furthermore, it is submitted that as a result of the litigation campaign, the right to social security, and particularly the right to social assistance, is more accessible and more of a reality on the ground.
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Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
Liberalisation and regulation of trade in the Southern African Development Community (SADC) : a critical analysis of the SADC trade protocol's provisions and its implementation
- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
- Full Text:
- Authors: Dube, Memory
- Date: 2009
- Subjects: General Agreement on Tariffs and Trade (Organization) World Trade Organization Customs unions Foreign trade regulation Free trade -- Africa, Southern Southern African Development Community International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3716 , http://hdl.handle.net/10962/d1008204
- Description: The Southern African Development Community (SADC) declared a Free Trade Area on 17 August 2008. The Free Trade Area is the ultimate objective of the Trade Protocol on trade cooperation in SADC, signed in 1996. The Protocol is supported and complemented by the ambitious Regional Indicative Strategic Development Plan (RISDP). The idea behind the SADC Trade Protocol was to counter the developmental challenges facing SADC member states and to improve the productive and trade capacity of SADC countries. The implementation of the SADC Free Trade Area has been guided by the WTO/GATT regulatory framework on regional trade agreements, particularly GATT Article XXIV, the Understanding on the Interpretation of GATT Article XXIV, as well as the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause). This research seeks to analyse the SADC Trade Protocol's provisions and the implementation of such provisions. To facilitate an understanding of factors that affect the implementation of the SADC Trade Protocol, SADC's institutional and operational framework is discussed from a legal-historical perspective. The provisions of the Trade Protocol are analysed for compliance with WTO/GA TT rules as well as for applicability within the SADC context. The provisions of the WTO/GA TT regulatory framework on regional trade agreements are also analysed with a view to determining whether they are applicable in developing country situations such as SADC. The Free Trade Area is seen as the first step towards regional economic integration in the region and is to be followed by a Customs Union, a Common Market and then eventually an Economic Community with its own central bank and regional currency. It is envisaged that the region will proceed through all these traditional theoretical phases of economic integration between 2008 and 2018. The implementation of the Trade Protocol has been beset with institutional, administrative and infrastructural challenges which pose obstacles to the attainment of the other stages of economic integration in the time frames prescribed in the RISDP. These challenges are assessed for impact on the regional economic integration of SADC by evaluating the progress towards implementing the Trade Protocol provisions and the implementation of measures taken towards the launch of the Free Trade Area. Emerging issues are also identified and analysed for their effect on the Free Trade Area and the general economic agenda of SADC. Of particular note is the Economic Partnership Agreements (EPAs) being negotiated with the European Union where SADC countries are negotiating in four different configurations. An analysis of this EPA situation reveals that it compounds a pre-existing problem: that of overlapping membership of regional trade agreements. Prior to the EPAs and the intensified drive towards the creation of the Customs Union, there was largely no need to rationalise the overlap in regional trade agreement memberships, but it is now a matter of urgency. The overlap in membership has complicated EPA negotiations and places serious doubts on the prospects of complete regional integration in SADC.This research concludes with observations on South Africa's complicated relationship with her SADC neighbours. South Africa's trade policies, as regards both the SADC region and the world, are discussed. Because of its political and economic dominance, South Africa's policies have a ripple effect on the rest of SADC; hence the need for South Africa to be vigilant in formulating and implementing its trade policies.
- Full Text:
The possibility of psychotherapeutic privilege in South Africa
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
- Full Text:
- Authors: Gewald, Rieka Susan
- Date: 2009
- Subjects: Psychology -- Moral and ethical aspects -- South Africa Psychologists -- Professional ethics -- South Africa Psychotherapists -- Professional ethics -- South Africa Confidential communications -- South Africa Privileges and immunities -- South Africa Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3717 , http://hdl.handle.net/10962/d1008208
- Description: Privilege is an evidential principle which, on the grounds of public policy, excludes evidence relevant and otherwise admissible. This thesis aims to discover whether privilege should be applied to the psychotherapeutic profession in South Africa. At present, the only profession in South Africa afforded privilege is the legal profession. There are two main theoretical justifications for privilege: the utilitarian and the individual/human rights approach. This thesis considers whether the psychotherapeutic profession warrants privilege under either theory, and recommends that the law of privilege integrate both theories rather than adopt one or the other. The impact of the Constitution and the right to privacy receive particular attention. Very little literature or case law on the question of psychotherapeutic privilege was found in South Africa. Consequently, extensive comparative research into the common-law systems of England, Canada and United States of America was done. This research yielded some interesting findings. The first is that case-by-case development of the law of privilege is uncel1ain and fragmented. The next is that psychotherapeutic privilege exists in almost absolute form in the United States of America, but is littered with lacunae causing as much uncertainty as the case-by-case approach to privilege law. The most helpful method of dealing with the problem was found in Canada, where a two-stage approach to protecting personal information, including psychotherapeutic records, has been developed. In light of this research, this thesis reassesses the original viability of psychotherapeutic privilege in South Africa. Privilege, it was found, is not the best solution to protecting psychotherapeutic communications. This thesis recommends legislative adoption of an amended two-stage approach based on the Canadian model for sexual offence trials as the best method of protecting psychotherapeutic communications in both civil and criminal proceedings. The thesis ends by suggesting draft legislative provisions.
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The Rotterdam Rules : a South African perspective
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
Protectionism and compliance with the GATT article XXIV in selected regional trade arrangements
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
- Full Text:
- Authors: Grimett, Leticia Anthea
- Date: 1999
- Subjects: General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3673 , http://hdl.handle.net/10962/d1003188 , General Agreement on Tariffs and Trade (Organization) , International trade , Tariff -- Law and legislation , Protectionism , Free trade -- South Africa , South Africa -- Commerce
- Description: The General Agreement on Tariffs and Trade (GATT) 1994 has resulted in the GATT Contracting States making a renewed commitment to freer global trade and trade liberalisation. These Contracting States signalled their commitment to GATT policies and principles by undertaking to abolish all those non-tariff barriers which were not converted to tariffs and to decrease all tariffs applied by their domestic economies. The movement away from protectionism is intended to bring contracting states in line with the GATT most-favoured-nation and national treatment principles. The only exceptions to these principles are the regional trade arrangements which can be implemented in accordance with Article XXIV of GATT 1947 and the Understanding on the Implementation of Article XXIV of GATT 1947. Regional trade arrangements such as customs unions and free-trade areas have been allowed by the GATT as they are deemed to promote trade liberalisation through the removal of substantially all trade restrictions between countries party to these trade arrangements. In practice this has not been the case, however, as these regional trade arrangements have been known to apply very protectionist trade policies. This research determines whether regional trade arrangements are inherently protective ie does the nature of these regional trade arrangements encourage protectionism? The external trade policies of the European Union (EU), Association of Southeast Asian Nations (ASEAN), Southern African Development Community (SADC) and the Southern African Customs Union (SACU) are analysed to determine whether the contracting parties to regional trade arrangements have corrupted the GATT provisions and so contributed towards the protectionist nature of these regional trade arrangements. The internal trade provisions relating to the implementation of these regional trade arrangements have also been discussed to determine their compliance with Article XXIV of GATT 1947. As all the selected regional trade arrangements have direct or indirect links to South Africa, the implications of the policies chosen by these parties for South Africa have also been discussed. Analysis of the EU, SADC, SACU and ASEAN has shown that prior to the adoption of the GATT 1994, the free-trade areas and customs unions were not implemented in accordance with Article XXIV provisions. These regional trade arrangements have been moulded to fit the economic aspirations of the relevant contracting states. Of the regional trade arrangements accepted by the GATT, free-trade areas have been found to be the least protectionist and are the least likely to be perverted by contracting parties. Customs unions, on the other hand, may encourage contracting parties to protect their economies as they rely on group participation rather than individual participation. Individual Member States become responsible to the group which provides these states with greater economic power. As a result Member States are motivated to protect the new group entity from outside competition. In this way, they are inherently protective. Safeguards are therefore necessary to protect individual non-Member States from such behaviour. The implications of protectionism for South Africa, SADC and SACU have also been discussed.
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The plea of truth and public benefit as a defence to an action for defamation in South African law
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
The violence of language : contemporary hate speech and the suitability of legal measures regulating hate speech in South Africa
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
- Full Text:
- Authors: Janse van Rensburg, Leanne
- Date: 2013
- Subjects: Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3663 , http://hdl.handle.net/10962/d1001866 , Hate speech -- South Africa , Hate speech -- Law and legislation -- South Africa , Racism in language , Freedom of speech -- South Africa
- Description: This thesis unites law and social science so as to give a comprehensive account of the phenomenon of racial hate speech in South Africa as an obstacle to transformation. Hate speech is presented as a form of violent language and an affront to the constitutional rights of freedom of speech, equality and dignity. To establish the nature of hate speech, the fluid quality of language is explored so as to show how language can be manipulated, on the one hand, as a means to harm, and employed, on the other hand, as a tool to heal and reconcile. This double gesture is illustrated through the South African linguistic experience of past hate and segregation and the current transformation agenda. It is through this prism that hate speech regulation is discussed as an uneasy fit in a country where freedom of expression is constitutionally protected and where language plays an important role in bringing about reconciliation, and yet words are still being employed to divide and dehumanise. This reality necessitates a clearly articulated stance on the regulation of language. The thesis accordingly interrogates the current legal standards in relation to hate speech with reference to international law that binds South Africa and the constitutional standard set for the regulation of language and the prohibition of hate speech. Thereafter, the current and proposed legislative prohibitions on hate speech, the residual common law provisions governing expression and the regulation of language in the media are outlined and analysed. These legal frameworks are explored in terms of their content and their application in various fora so as to ascertain what the South African approach to hate speech prohibition is, whether it is consistent and, ultimately if it is indeed suitable to the South African experience and the realities of language. This thesis concludes that contemporary hate speech measures lack a coherent understanding of what hate speech entails and a general inconsistency in approach as well as application is found in the treatment of hate speech complaints in South Africa. This is explained through the fallibility of language as a medium to regulate expression and solutions are offered to not only taper current and proposed hate speech provisions but to also consider alternative forms of resolving hate speech complaints
- Full Text:
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
The effects of climate change on the realisation of the right to adequate food in Kenya
- Khayundi, Francis Mapati Bulimo
- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
- Full Text:
- Authors: Khayundi, Francis Mapati Bulimo
- Date: 2012
- Subjects: Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3675 , http://hdl.handle.net/10962/d1003190 , Climatic changes -- Social aspects -- Research -- Kenya , Right to food -- Research -- Kenya , Human rights -- Research -- Kenya , Food security -- Research -- Kenya , Food law and legislation -- Kenya
- Description: This thesis examines the interplay between the effects of climate change and human rights. It seeks to interrogate the contribution of human rights in addressing the effects of climate change on the enjoyment of the right to food in Kenya. Climate change has been recognised as a human rights issue. Despite this acknowledgement, many states are yet to deal with climate change as a growing threat to the realisation of human rights. The situation is made worse by the glacial pace in securing a binding legal agreement to tackle climate change. The thesis also reveals that despite their seemingly disparate and disconnected nature, both the human rights and climate change regimes seek to achieve the same goal albeit in different ways. The thesis argues that a considerable portion of the Kenyan population has not been able to enjoy the right to food as a result of droughts and floods. It adopts the view that, with the effects of climate change being evident, the frequency and magnitude of droughts and floods has increased with far reaching consequences on the right to food. Measures by the Kenyan government to address the food situation have always been knee jerk and inadequate in nature. This is despite the fact that Kenya is a signatory to a number of human rights instruments that deal with the right to food. With the promulgation of a new Constitution with a justiciable right to food, there is a need for the Kenyan government to meet its human rights obligations. This thesis concludes by suggesting ways in which the right to food can be applied in order to address some of the effects of climate change. It argues that by adopting a human rights approach to the right to food, the State will have to adopt measures that take into consideration the impacts of climate change. Furthermore, the State is under an obligation to engage in activities that will not contribute to climate change and negatively affect the right.
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An examination of employee participation as provided for in the Labour Relations Act 66 of 1995
- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
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- Authors: Khoza, Francisco Jabulani
- Date: 1999
- Subjects: Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3676 , http://hdl.handle.net/10962/d1003191 , Decision making , Management -- Employee participation , Labor laws and legislation -- South Africa , South Africa. Labour Relations Act, 1995
- Description: The thesis covers the field of labour law known as employee participation in decision-making. It deals with the examination of the extent to which the Labour Relations Act 66 of 1995 (the Act) promotes employee participation in decision-making. Firstly, the analysis shows that employee participation in decision-making is an aspect of democracy, which is translated into industrial democracy in industrial relations. In South Africa the philosophical foundation of employee participation is supported by the Constitution of the Republic of South Africa Act 108 of 1996 which embodies democratic values permeating all areas of the law including labour law. Secondly, the study elucidates the jurisprudential background of employee participation in South Africa. There is evidence of the development of some principles of participation like consultation; information disclosure; and the existence of participatory forums like works councils under the LRA 28 of 1956. Thirdly, in evaluating the extent to which the LRA 66 of 1995 promotes employee participation, the following aspects are covered: the relevance and contribution of information disclosure; the effect of consultation prior to dismissal for operational requirements; the role of collective bargaining; and the contribution of workplace forums. The conclusion is reached that all the foregoing aspects of the LRA 66 of 1995 will contribute to the promotion of employee participation in decision-making. The Labour Court and the Commission for Conciliation Mediation and Arbitration can also ensure that in interpreting the Act employee participation is promoted where appropriate. Finally, employers and employees will have to accept this necessary partnership for the entrenchment of employee participation in decision-making.
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A study of the powers of the Swazi monarch in terms of Swazi law and custom past, present and the future
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
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- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
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Life in the suburbs after "Grootboom": the role of local government in realising housing rights in the Eastern Cape
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
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- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
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South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
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- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
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A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
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- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
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