The Kenya National Human Rights Commission and the promotion, protection and monitoring of socio-economic rights in Kenya
- Khayundi, Francis Bulimo Mapati
- Authors: Khayundi, Francis Bulimo Mapati
- Date: 2018
- Subjects: Kenya Human Rights Commission , Economic rights -- Kenya , Social rights -- Kenya , Kenya -- Economic conditions , Kenya -- Social conditions , Kenya -- Politics and government
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60413 , vital:27777
- Description: The promulgation of the 2010 Constitution of Kenya introduced socio-economic rights (SERs) amid widespread poverty and rising inequality. This study seeks to answer the overarching question, what role can the Kenya National Commission on Human Rights (KNCHR) play in promoting, protecting and monitoring SERs in Kenya? Further research questions included whether the KNCHR has the requisite powers to perform its mandate and what lessons could be learned from the South African context. The research sought to understand how the local context affects the ability of KNCHR to carry out its mandate. Likewise, it analyses some of the contributions KNCHR has made in the promotion and protection of SERs while identifying the challenges the Commission faces in carrying out its mandate. Several methodologies were utilised to answer the research questions above. The methodologies included the doctrinal method, analysis of secondary sources and interviews with key informants. A comparative legal research methodology was also employed, with the SAHRC being used as a case study on how NHRIs can promote, protect and monitor SERs. The findings from the research argue that the Paris Principles provide the minimum guidelines on the establishment of NHRIs. Compliance with these Principles has not necessarily guaranteed the effectives of NHRIs. Any assessment of an NHRI should be based on its performance and legitimacy considering the local factors obtaining within its jurisdiction. The domestic protection and judicial enforcement of human rights in Kenya, though crucial to the realisation of SERs, has been fraught with challenges. These challenges have meant that the realisation of SERs has been curtailed and necessitated complementary institutions for human rights to be realised. Given the country’s constitutional architecture, the KNCHR was one such institution that could complement the role of the judiciary given its wide mandate. With SERs a new feature of the 2010 Constitution, the KNCHR had to find ways to promote SERs in the country considering the local peculiarities such as poverty, a highly political climate and lack of political goodwill from the legislature and executive sometime characterised by open hostility. These challenges and the new nature of these rights called for a comparative study with the SAHRC given some similarities between the two jurisdictions. The SAHRC provided valuable lessons having had more experience in dealing with SERs while navigating similar challenges the KNCHR faced or might face. The findings of the research prompted recommendations directed at the KNCHR and other stakeholders, specifically the legislature and executive on how to address the challenges curtailing the performance of the KNCHR in general and particularly ways in which the Commission could go about in promoting, protecting and monitoring SERs.
- Full Text:
- Date Issued: 2018
- Authors: Khayundi, Francis Bulimo Mapati
- Date: 2018
- Subjects: Kenya Human Rights Commission , Economic rights -- Kenya , Social rights -- Kenya , Kenya -- Economic conditions , Kenya -- Social conditions , Kenya -- Politics and government
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60413 , vital:27777
- Description: The promulgation of the 2010 Constitution of Kenya introduced socio-economic rights (SERs) amid widespread poverty and rising inequality. This study seeks to answer the overarching question, what role can the Kenya National Commission on Human Rights (KNCHR) play in promoting, protecting and monitoring SERs in Kenya? Further research questions included whether the KNCHR has the requisite powers to perform its mandate and what lessons could be learned from the South African context. The research sought to understand how the local context affects the ability of KNCHR to carry out its mandate. Likewise, it analyses some of the contributions KNCHR has made in the promotion and protection of SERs while identifying the challenges the Commission faces in carrying out its mandate. Several methodologies were utilised to answer the research questions above. The methodologies included the doctrinal method, analysis of secondary sources and interviews with key informants. A comparative legal research methodology was also employed, with the SAHRC being used as a case study on how NHRIs can promote, protect and monitor SERs. The findings from the research argue that the Paris Principles provide the minimum guidelines on the establishment of NHRIs. Compliance with these Principles has not necessarily guaranteed the effectives of NHRIs. Any assessment of an NHRI should be based on its performance and legitimacy considering the local factors obtaining within its jurisdiction. The domestic protection and judicial enforcement of human rights in Kenya, though crucial to the realisation of SERs, has been fraught with challenges. These challenges have meant that the realisation of SERs has been curtailed and necessitated complementary institutions for human rights to be realised. Given the country’s constitutional architecture, the KNCHR was one such institution that could complement the role of the judiciary given its wide mandate. With SERs a new feature of the 2010 Constitution, the KNCHR had to find ways to promote SERs in the country considering the local peculiarities such as poverty, a highly political climate and lack of political goodwill from the legislature and executive sometime characterised by open hostility. These challenges and the new nature of these rights called for a comparative study with the SAHRC given some similarities between the two jurisdictions. The SAHRC provided valuable lessons having had more experience in dealing with SERs while navigating similar challenges the KNCHR faced or might face. The findings of the research prompted recommendations directed at the KNCHR and other stakeholders, specifically the legislature and executive on how to address the challenges curtailing the performance of the KNCHR in general and particularly ways in which the Commission could go about in promoting, protecting and monitoring SERs.
- Full Text:
- Date Issued: 2018
Determining the competency of children with developmental delays to testify in criminal trials
- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
- Full Text:
- Date Issued: 2015
- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
- Full Text:
- Date Issued: 2015
Combating corruption while respecting human rights : a critical study of the non-conviction based assets recovery mechanism in Kenya and South Africa
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
- Date Issued: 2014
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
- Date Issued: 2014
An analysis of selected World Trade Organisation agreements to determine whether they discriminate unfairly against developing economices
- Authors: Grimett, Leticia Anthea
- Date: 2013-07-29
- Subjects: World Trade Organization Foreign trade regulation General Agreement on Tariffs and Trade (Organization) Free trade -- Developing countries Foreign trade regulation -- Developing countries Competition, Unfair -- Developing countries
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3718 , http://hdl.handle.net/10962/d1008368
- Description: The focus of this thesis is the question whether or not the WTO discriminates unfairly against developing economies. In the absence of a test of guidelines for detennining unfairness or fairness of WTO provisions or Agreements has been drawn up using welfare economic and constitutional law principles as a foundation. Unfairness is therefore determined by asking whether the provisions of each Agreement are rational, proportional, efficient and whether they prevent the abuse of power amongst states. In addition, the economic effects of the provisions of the selected Agreements have been analysed to determine whether the relevant provisions are welfare enhancing and conclusive to promoting growth and development within developing economies. The Agreements chosed for analysis are the Agreements on Trade-related Investment Measures (TRIMS), Trade-related Intellectual Property (TRIPS), Agriculture and Services (GATS). The dispute settlement and negotiating process, labour standards and the impact of decreasing most-favoured nation rates on developing economy competitiveness is also discussed. Application of the test has shown that the WTO provisions do not reflect the interests of all members. Even though most member states are developing economies, the3 Agreements constantly cater foe developed country concerns and interests. Where provision is made for developing country interests, it is the LDC's who are favoured, with nonnal developing economies being bound by the same provisions as the developed economies. A fonnal, as opposed to a substantive, defmition has been adopted by the WTO, with a result that the process of equality is placed above the outcomes. While concessions have been made to development, members have not gone for enough. A main reason for the imbalance can be attributed to the negotiating process, which is based upon concessionary bargaining and trade-off. Those states with greater economic power are therefore at an advantage as they have the leverage needed to influence the outcomes of negotiations and hence the provisions of the various Agreements. Even with the LDC's, the WTO has been found to discriminate unfairly against developing economies because it does not adequately address developing country concerns. , KMBT_363 , Adobe Acrobat 9.54 Paper Capture Plug-in
- Full Text:
- Authors: Grimett, Leticia Anthea
- Date: 2013-07-29
- Subjects: World Trade Organization Foreign trade regulation General Agreement on Tariffs and Trade (Organization) Free trade -- Developing countries Foreign trade regulation -- Developing countries Competition, Unfair -- Developing countries
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3718 , http://hdl.handle.net/10962/d1008368
- Description: The focus of this thesis is the question whether or not the WTO discriminates unfairly against developing economies. In the absence of a test of guidelines for detennining unfairness or fairness of WTO provisions or Agreements has been drawn up using welfare economic and constitutional law principles as a foundation. Unfairness is therefore determined by asking whether the provisions of each Agreement are rational, proportional, efficient and whether they prevent the abuse of power amongst states. In addition, the economic effects of the provisions of the selected Agreements have been analysed to determine whether the relevant provisions are welfare enhancing and conclusive to promoting growth and development within developing economies. The Agreements chosed for analysis are the Agreements on Trade-related Investment Measures (TRIMS), Trade-related Intellectual Property (TRIPS), Agriculture and Services (GATS). The dispute settlement and negotiating process, labour standards and the impact of decreasing most-favoured nation rates on developing economy competitiveness is also discussed. Application of the test has shown that the WTO provisions do not reflect the interests of all members. Even though most member states are developing economies, the3 Agreements constantly cater foe developed country concerns and interests. Where provision is made for developing country interests, it is the LDC's who are favoured, with nonnal developing economies being bound by the same provisions as the developed economies. A fonnal, as opposed to a substantive, defmition has been adopted by the WTO, with a result that the process of equality is placed above the outcomes. While concessions have been made to development, members have not gone for enough. A main reason for the imbalance can be attributed to the negotiating process, which is based upon concessionary bargaining and trade-off. Those states with greater economic power are therefore at an advantage as they have the leverage needed to influence the outcomes of negotiations and hence the provisions of the various Agreements. Even with the LDC's, the WTO has been found to discriminate unfairly against developing economies because it does not adequately address developing country concerns. , KMBT_363 , Adobe Acrobat 9.54 Paper Capture Plug-in
- Full Text:
The application of the Rome Statute of the International Criminal Court to illegal natural resource exploitation in the Congo conflic
- Authors: Tsabora, James
- Date: 2013 , 2013-03-27
- Subjects: International criminal law -- Congo (Democratic Republic) Criminal procedure (International law) Natural resources -- Law and legislation -- Congo (Democratic Republic)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3665 , http://hdl.handle.net/10962/d1002612
- Description: This thesis explores the phenomenon of illegal natural resource exploitation in conflict zones and the application of international criminal law, particularly the Rome Statute of the International Criminal Court to combat the roblem. Contemporary African conflicts, such as the Democratic Republic of Congo conflict explored as a case study herein, have become increasingly distinguishable by the tight connection between war and various forms of illegal natural resource exploitation, particularly targeting valuable and precious mineral resources. With their incidence being highest in Africa, wars funded by illegally exploited natural resources have gradually become one of the greatest threats to regional peace and human security on the African continent. The Congo conflict clearly demonstrated the problematic nature and impact of illegal natural resource exploitation and the widespread human, economic and political costs associated with this phenomenon. This thesis is based on the initial assumption that the quest by conflict actors to profit from war through illegal natural resource exploitation activities is at the centre of the commission of serious human rights violations as well as the complexity and longevity of African conflicts. Developments in international criminal law, culminating in the adoption of the Rome Statute and the establishment of the International Criminal Court, have given impetus to the argument that any group of conflict actors should be subjected to the individual criminal responsibility regime of this legal framework. A further underlying assumption of this thesis is therefore that international criminal law can constrain the acts and conduct defined in this thesis as illegal natural resource exploitation activities since they constitute war crimes under the Rome Statute framework. However, despite illustrating the illegal resource exploitation activities of various state and non-state actors, this thesis is confined to an application of the Rome Statute based international criminal liability regime against members of armed rebel groups involved in such acts. In exploring these issues, this work examines international criminal law institutions and the relevance of international criminal justice in addressing particular phenomena prevalent during African armed conflicts. It further provides the stage to assess the potential of international criminal law in safeguarding natural resources for the benefit of African societies perennially exposed to the depredations of natural resource financed warfare. , Microsoft� Office Word 2007 , Adobe Acrobat 9.53 Paper Capture Plug-in
- Full Text:
- Date Issued: 2013
- Authors: Tsabora, James
- Date: 2013 , 2013-03-27
- Subjects: International criminal law -- Congo (Democratic Republic) Criminal procedure (International law) Natural resources -- Law and legislation -- Congo (Democratic Republic)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3665 , http://hdl.handle.net/10962/d1002612
- Description: This thesis explores the phenomenon of illegal natural resource exploitation in conflict zones and the application of international criminal law, particularly the Rome Statute of the International Criminal Court to combat the roblem. Contemporary African conflicts, such as the Democratic Republic of Congo conflict explored as a case study herein, have become increasingly distinguishable by the tight connection between war and various forms of illegal natural resource exploitation, particularly targeting valuable and precious mineral resources. With their incidence being highest in Africa, wars funded by illegally exploited natural resources have gradually become one of the greatest threats to regional peace and human security on the African continent. The Congo conflict clearly demonstrated the problematic nature and impact of illegal natural resource exploitation and the widespread human, economic and political costs associated with this phenomenon. This thesis is based on the initial assumption that the quest by conflict actors to profit from war through illegal natural resource exploitation activities is at the centre of the commission of serious human rights violations as well as the complexity and longevity of African conflicts. Developments in international criminal law, culminating in the adoption of the Rome Statute and the establishment of the International Criminal Court, have given impetus to the argument that any group of conflict actors should be subjected to the individual criminal responsibility regime of this legal framework. A further underlying assumption of this thesis is therefore that international criminal law can constrain the acts and conduct defined in this thesis as illegal natural resource exploitation activities since they constitute war crimes under the Rome Statute framework. However, despite illustrating the illegal resource exploitation activities of various state and non-state actors, this thesis is confined to an application of the Rome Statute based international criminal liability regime against members of armed rebel groups involved in such acts. In exploring these issues, this work examines international criminal law institutions and the relevance of international criminal justice in addressing particular phenomena prevalent during African armed conflicts. It further provides the stage to assess the potential of international criminal law in safeguarding natural resources for the benefit of African societies perennially exposed to the depredations of natural resource financed warfare. , Microsoft� Office Word 2007 , Adobe Acrobat 9.53 Paper Capture Plug-in
- Full Text:
- Date Issued: 2013
Racism and law : implementing the right to equality in selected South African equality courts
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
- Full Text:
- Date Issued: 2009
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
- Full Text:
- Date Issued: 2009
Regulating franchise operations in South Africa : a study of the existing legal framework with suggestions for reform.
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
Aspects of the sentencing process in child sexual abuse cases
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
- Authors: Van der Merwe, Annette
- Date: 2006
- Subjects: Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3696 , http://hdl.handle.net/10962/d1003211 , Child sexual abuse -- South Africa , Sexually abused children -- Legal status, laws, etc -- South Africa , Child abuse -- Law and legislation -- South Africa , Sex crimes -- South Africa , Sentences(Criminal procedure) -- South Africa
- Description: This thesis investigates current sentencing practices relating to the diverse, complex and emotionally laden phenomenon of child sexual abuse. It focuses on relevant legislative provisions, on case law and on an empirical study conducted amongst regional court magistrates. Trends, developments and problems are analysed and possible solutions to the main problems identified are investigated. The thesis concludes with proposed guidelines regarding the sentencing process in child sexual abuse cases. Such guidelines address general and specific principles, the use of victim impact statements, the increased recognition and use of behavioural science in the sentencing phase with regard to both the victim and the offender, and relevant aggravating and mitigating factors. The guidelines are an attempt to give some structure to the current haphazard approach adopted by the courts with regard to harm experienced by the victim. They are also aimed at assisting experts to provide more effective and reliable pre-sentence reports. Further, the thesis attempts to provide clarity concerning the factors that are considered to be aggravating or mitigating in the offence category, child sexual abuse, as well as with regard to the weight that should be attached to them. In addition, recommendations are made for the purpose of possible law reform and further research in relation to the regulation of judicial discretion through the introduction of formal sentencing guidelines, victim impact statements and the accommodation of behavioural science in the sentencing process pertaining to sexual offenders. This proposal is based on current South African sentencing practices as reflected in the consolidation of local judgments scattered over many years in different law reports and, to some extent, on English, Canadian, Australian and American sentencing practices as researched in this study.
- Full Text:
- Date Issued: 2006
Access to land as a human right the payment of just and equitable compensation for dispossessed land in South Africa
- Authors: Yanou, Michael A
- Date: 2005
- Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
- Full Text:
- Date Issued: 2005
- Authors: Yanou, Michael A
- Date: 2005
- Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
- Full Text:
- Date Issued: 2005
The doctrine of duress in the law of contract and unjustified enrichment in South Africa
- Authors: Glover, Graham Brian
- Date: 2004
- Subjects: Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3672 , http://hdl.handle.net/10962/d1003187 , Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Description: This thesis analyses the doctrine of duress and its application in the law of contract and unjustified enrichment in South Africa. Following an initial examination of the historical development of the doctrine from its roots in Roman and Roman-Dutch law, the study focuses on the current legal position in the two areas of law under review, identifies the substantive and formal deficiencies in the current approach, and suggests, using comparative authorities, how the law might be developed. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test for duress is then proposed: one that concentrates on the question whether an illegitimate threat was made, which induced a contract in that it left the other person no reasonable choice but to succumb to the proposal. Additionally, the need for South African contract law to recognise and deal with cases of economic duress is emphasised. The study then shifts to an examination of the position in situations where non-contractual performances have occurred under duress: cases that are decided in terms of the principles of the law of unjustified enrichment. The current position is reviewed, and it is shown that the approach to duress cases is substantially different to the approach that applies in contract. An attempt is made to reconcile this problem. From a structural perspective, the nature and application of the relevant enrichment action where a non-contractual performance is made under duress (the condictio indebiti) is also investigated, in the light of approaches to enrichment adopted in both Germany and England, in an attempt to make better sense of this enrichment action in the South African context. The study closes with an analysis of the various contractual, delictual and enrichment remedies that are available once a case of duress has been proved.
- Full Text:
- Date Issued: 2004
- Authors: Glover, Graham Brian
- Date: 2004
- Subjects: Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3672 , http://hdl.handle.net/10962/d1003187 , Contracts -- South Africa , Duress (Law) -- South Africa , Remedies (Law) -- South Africa
- Description: This thesis analyses the doctrine of duress and its application in the law of contract and unjustified enrichment in South Africa. Following an initial examination of the historical development of the doctrine from its roots in Roman and Roman-Dutch law, the study focuses on the current legal position in the two areas of law under review, identifies the substantive and formal deficiencies in the current approach, and suggests, using comparative authorities, how the law might be developed. As far as the law of contract is concerned, after exposing the difficulties inherent in the current approach, and placing the doctrine in its proper context in the South African law of contract generally, it is argued that the duress doctrine finds its juridical basis in the principle of good faith. A more modern and coherent test for duress is then proposed: one that concentrates on the question whether an illegitimate threat was made, which induced a contract in that it left the other person no reasonable choice but to succumb to the proposal. Additionally, the need for South African contract law to recognise and deal with cases of economic duress is emphasised. The study then shifts to an examination of the position in situations where non-contractual performances have occurred under duress: cases that are decided in terms of the principles of the law of unjustified enrichment. The current position is reviewed, and it is shown that the approach to duress cases is substantially different to the approach that applies in contract. An attempt is made to reconcile this problem. From a structural perspective, the nature and application of the relevant enrichment action where a non-contractual performance is made under duress (the condictio indebiti) is also investigated, in the light of approaches to enrichment adopted in both Germany and England, in an attempt to make better sense of this enrichment action in the South African context. The study closes with an analysis of the various contractual, delictual and enrichment remedies that are available once a case of duress has been proved.
- Full Text:
- Date Issued: 2004
The fundamental right to just administrative action: judicial review of administrative action in the democratic South Africa
- Authors: Plasket, Clive
- Date: 2003
- Subjects: Judicial review of administrative acts -- South Africa Administrative acts -- South Africa Administrative law -- South Africa Public administration -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3693 , http://hdl.handle.net/10962/d1003208
- Description: For most of its existence South African administrative law has been shaped by the doctrine of parliamentary sovereignty – the heart of the constitutional order from 1910 to 1994 – and a racist political system that favoured the white minority at the expense of the black majority. In these circumstances, the rules of administrative law were of limited use in protecting the individual from exercises of administrative power that infringed fundamental human rights, often on a grand scale. On 27 April 1994, however, a new political and constitutional order came into existence that swept away the very foundations of the old order: parliamentary sovereignty was replaced by constitutional supremacy and the racial exclusivity of the old order was replaced by a commitment to equality, freedom and dignity in a democratic state. A justiciable Bill of Rights was at centre stage in this new order. That Bill of Rights includes a fundamental right to just administrative action. It is both the new constitutional order and this rather unusual fundamental right that have changed the nature of South African administrative law. This thesis examines the effect of the fundamental right to just administrative action on the law and practice of the judicial review of administrative action. It does so principally by examining the legal position before and after 27 April 1994 with particular reference to: what is meant by administrative action; the exercise of administrative power by private bodies regulated by the rules of administrative law, on the one hand, and exercises of private power regulated by rules of private law, on the other; the rules of standing, the notion of justiciability and the constitutionality of rules that seek to limit the right of the individual to approach a court to review administrative action; the meaning and scope of the right to lawful, reasonable and procedurally fair administrative action, in terms of the common law, the Constitution and the Promotion of Administrative Justice Act 3 of 2000; the meaning, scope and efficacy of the rights to reasons for administrative actions and of access to information; the procedure of judicial review and remedies that may be granted for the infringement of a person’s right to just administrative action; and conclusions and recommendations with regard to progress made in the construction of South Africa’s new, democratically based, administrative law.
- Full Text:
- Date Issued: 2003
- Authors: Plasket, Clive
- Date: 2003
- Subjects: Judicial review of administrative acts -- South Africa Administrative acts -- South Africa Administrative law -- South Africa Public administration -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3693 , http://hdl.handle.net/10962/d1003208
- Description: For most of its existence South African administrative law has been shaped by the doctrine of parliamentary sovereignty – the heart of the constitutional order from 1910 to 1994 – and a racist political system that favoured the white minority at the expense of the black majority. In these circumstances, the rules of administrative law were of limited use in protecting the individual from exercises of administrative power that infringed fundamental human rights, often on a grand scale. On 27 April 1994, however, a new political and constitutional order came into existence that swept away the very foundations of the old order: parliamentary sovereignty was replaced by constitutional supremacy and the racial exclusivity of the old order was replaced by a commitment to equality, freedom and dignity in a democratic state. A justiciable Bill of Rights was at centre stage in this new order. That Bill of Rights includes a fundamental right to just administrative action. It is both the new constitutional order and this rather unusual fundamental right that have changed the nature of South African administrative law. This thesis examines the effect of the fundamental right to just administrative action on the law and practice of the judicial review of administrative action. It does so principally by examining the legal position before and after 27 April 1994 with particular reference to: what is meant by administrative action; the exercise of administrative power by private bodies regulated by the rules of administrative law, on the one hand, and exercises of private power regulated by rules of private law, on the other; the rules of standing, the notion of justiciability and the constitutionality of rules that seek to limit the right of the individual to approach a court to review administrative action; the meaning and scope of the right to lawful, reasonable and procedurally fair administrative action, in terms of the common law, the Constitution and the Promotion of Administrative Justice Act 3 of 2000; the meaning, scope and efficacy of the rights to reasons for administrative actions and of access to information; the procedure of judicial review and remedies that may be granted for the infringement of a person’s right to just administrative action; and conclusions and recommendations with regard to progress made in the construction of South Africa’s new, democratically based, administrative law.
- Full Text:
- Date Issued: 2003
An analysis of the effects of marriage, divorce and death on the child maintenance obligation in South African law with some comparative perspectives
- Authors: Clark, Brigitte
- Date: 2000
- Subjects: Child support -- Law and legislation -- South Africa Divorce -- South Africa Marriage -- South Africa Death
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3669 , http://hdl.handle.net/10962/d1003184
- Description: This thesis analyses the law of child maintenance in South Africa with particular reference to the effects of marriage, death and divorce on such an obligation. In the introductory section, the types of South African family are demographically and statistically sketched, from a socio-legal perspective with some reliance on interdisciplinary research to assess the prevalence of the AID/HIV epidemic in South Africa, and the effects of poverty and ageing on the incidence of marriage and death. In the second part of the thesis, the parental child maintenance obligation is analysed in the common law context. The effects of serial marriage and arificial conception are also analysed with regard to their effect on the concept of biological parent. The nature and definition of parenthood is examined and the diverse and fluid nature of parenthood in South African society is stressed, particularly in relation to children's welfare. One of the aims of the thesis is to indicate how parenthood refers to a fluid set of social practices which are both biologically and culturally situated and thus have a complex effect on the maintenance obligation. The procedural problems of enforcement are also analysed in the light of recent amendments to the law in terms of the Maintenance Act 99 of 1998 (not yet in force) and some further proposals for reform in this area are proposed. The third part of the thesis examines the state obligation to maintain children, especially in the light of the state's commitments to children in terms of the Constitution of the Republic of South Africa Act (l08 of 1996) and its international commitments in terms of the United Nations Convention on the Rights of the Child which was ratified by the South African government on 16 June 1995. In the fourth part of the thesis, there is some comparative analysis, firstly, of the procedural law reforms proposed in Namibia as a result of detailed research done there. Secondly, alternative methods of assessing and enforcing child maintenance obligations in Australia and England are examined and briefly assessed in relation to their possible implementation and efficacy in a South African context. Finally, the thesis concludes with an overall synopsis of the position in this country and some proposals for reform in the light of the international and constitutional commitments of the state.
- Full Text:
- Date Issued: 2000
- Authors: Clark, Brigitte
- Date: 2000
- Subjects: Child support -- Law and legislation -- South Africa Divorce -- South Africa Marriage -- South Africa Death
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3669 , http://hdl.handle.net/10962/d1003184
- Description: This thesis analyses the law of child maintenance in South Africa with particular reference to the effects of marriage, death and divorce on such an obligation. In the introductory section, the types of South African family are demographically and statistically sketched, from a socio-legal perspective with some reliance on interdisciplinary research to assess the prevalence of the AID/HIV epidemic in South Africa, and the effects of poverty and ageing on the incidence of marriage and death. In the second part of the thesis, the parental child maintenance obligation is analysed in the common law context. The effects of serial marriage and arificial conception are also analysed with regard to their effect on the concept of biological parent. The nature and definition of parenthood is examined and the diverse and fluid nature of parenthood in South African society is stressed, particularly in relation to children's welfare. One of the aims of the thesis is to indicate how parenthood refers to a fluid set of social practices which are both biologically and culturally situated and thus have a complex effect on the maintenance obligation. The procedural problems of enforcement are also analysed in the light of recent amendments to the law in terms of the Maintenance Act 99 of 1998 (not yet in force) and some further proposals for reform in this area are proposed. The third part of the thesis examines the state obligation to maintain children, especially in the light of the state's commitments to children in terms of the Constitution of the Republic of South Africa Act (l08 of 1996) and its international commitments in terms of the United Nations Convention on the Rights of the Child which was ratified by the South African government on 16 June 1995. In the fourth part of the thesis, there is some comparative analysis, firstly, of the procedural law reforms proposed in Namibia as a result of detailed research done there. Secondly, alternative methods of assessing and enforcing child maintenance obligations in Australia and England are examined and briefly assessed in relation to their possible implementation and efficacy in a South African context. Finally, the thesis concludes with an overall synopsis of the position in this country and some proposals for reform in the light of the international and constitutional commitments of the state.
- Full Text:
- Date Issued: 2000
The child witness in the accusatorial system
- Authors: Müller, Karen, 1964-
- Date: 1998
- Subjects: Child witnesses , Children -- Legal status, laws, etc. , Child witnesses -- South Africa , Evidence (Law)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3715 , http://hdl.handle.net/10962/d1007708 , Child witnesses , Children -- Legal status, laws, etc. , Child witnesses -- South Africa , Evidence (Law)
- Description: For the purpose of this study tbe child witness in the accusatorial system will be viewed as a source of information. When a witness gives evidence in court, the function of the witness is to provide the court with certain information. A number of crucial questions arise when the witness is a child. Do children bave the ability to remember and relate an event accurately? Are children prone to suggestion and fantasy? What effect, if any, does the court environment have on a child 's ability to convey information? What perceptions do children have about the legal process, and how do these perceptions affect their ability to testify? Do adults influence the information which children impart by the techniques they employ to obtain such information? Accepting the hypothesis that child witnesses are sources of information, the purpose of this study is to evaluate all aspects of the criminal justice system relating to child witnesses as well as available research on children to determine whether it is possible to obtain reliable and accurate information from children. Proposals will be formulated regarding the most successful methods of obtaining reliable and accurate information from children, and how these can be adapted for use by the legal system. The purpose of the study is to develop an approach to children in the legal system that will be fair to children while at the same time protecting the rights of the accused, and which will lead to a successful method of obtaining accurate information.
- Full Text:
- Date Issued: 1998
- Authors: Müller, Karen, 1964-
- Date: 1998
- Subjects: Child witnesses , Children -- Legal status, laws, etc. , Child witnesses -- South Africa , Evidence (Law)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3715 , http://hdl.handle.net/10962/d1007708 , Child witnesses , Children -- Legal status, laws, etc. , Child witnesses -- South Africa , Evidence (Law)
- Description: For the purpose of this study tbe child witness in the accusatorial system will be viewed as a source of information. When a witness gives evidence in court, the function of the witness is to provide the court with certain information. A number of crucial questions arise when the witness is a child. Do children bave the ability to remember and relate an event accurately? Are children prone to suggestion and fantasy? What effect, if any, does the court environment have on a child 's ability to convey information? What perceptions do children have about the legal process, and how do these perceptions affect their ability to testify? Do adults influence the information which children impart by the techniques they employ to obtain such information? Accepting the hypothesis that child witnesses are sources of information, the purpose of this study is to evaluate all aspects of the criminal justice system relating to child witnesses as well as available research on children to determine whether it is possible to obtain reliable and accurate information from children. Proposals will be formulated regarding the most successful methods of obtaining reliable and accurate information from children, and how these can be adapted for use by the legal system. The purpose of the study is to develop an approach to children in the legal system that will be fair to children while at the same time protecting the rights of the accused, and which will lead to a successful method of obtaining accurate information.
- Full Text:
- Date Issued: 1998
Alternative dispute resolution in the best interests of the child
- Authors: Van Zyl, Lesbury
- Date: 1995
- Subjects: Divorce mediation -- South Africa , Dispute resolution (Law) -- South Africa , Custody of children -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3697 , http://hdl.handle.net/10962/d1003212 , Divorce mediation -- South Africa , Dispute resolution (Law) -- South Africa , Custody of children -- South Africa
- Description: The development of private divorce mediation appears to offer a friendly and informal alternative to the "hostile" adversarial divorce. A close analysis of its claims, however, shows them to be largely unproven. Urgent attention should therefore be given to the philosophical base of the movement. There is also a need for empirical research and for standardised training. Further unanswered questions relate to the part to be played by different professions, and to professional ethics. It is submitted that the appointment of Family Advocates is a step in the right direction but that the establishment of a full Family Court will best protect children's interests.
- Full Text:
- Date Issued: 1995
- Authors: Van Zyl, Lesbury
- Date: 1995
- Subjects: Divorce mediation -- South Africa , Dispute resolution (Law) -- South Africa , Custody of children -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3697 , http://hdl.handle.net/10962/d1003212 , Divorce mediation -- South Africa , Dispute resolution (Law) -- South Africa , Custody of children -- South Africa
- Description: The development of private divorce mediation appears to offer a friendly and informal alternative to the "hostile" adversarial divorce. A close analysis of its claims, however, shows them to be largely unproven. Urgent attention should therefore be given to the philosophical base of the movement. There is also a need for empirical research and for standardised training. Further unanswered questions relate to the part to be played by different professions, and to professional ethics. It is submitted that the appointment of Family Advocates is a step in the right direction but that the establishment of a full Family Court will best protect children's interests.
- Full Text:
- Date Issued: 1995
Emergency law: judicial control of executive power under the states of emergency in South Africa
- Authors: Grogan, John
- Date: 1989
- Subjects: War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3674 , http://hdl.handle.net/10962/d1003189 , War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
- Description: This work examines the legal effects of a declaration of a state of emergency under the Public Safety Act 3 of 1953 and the exercise of legislative and administrative powers pursuant thereto. The general basis of judicial control over executive action and the various devices used to limit or oust the court's jurisdiction are set out and explained. Against this background, the courts' performance of their supervisory role under the special circumstances of emergency rule is critically surveyed and assessed. The legal issues raised by the exercise of emergency powers is examined at the various levels of their deployment: first, the declaration of a state of emergency; second, the making of emergency regulations; third, their execution by means of administrative action, including detention, banning, censorship and the use of force. The major cases concerning emergency issues, both reported and unreported, are analysed in their appropriate contexts, and an overview provided of the effects of emergency regulations and orders on such freedoms as South Africans enjoy under the 'ordinary' law. Finally, an attempt is made to assess how these decisions have affected the prospect of judicial review of executive action, both in the emergency context and in the field of administrative law generally. The conclusion is that, however far the Appellate Division may appear to have gone towards eliminating the role of the law in the emergency regime, grounds remain for the courts to exercise a more vigorous supervisory role should they choose to do so in future.
- Full Text:
- Date Issued: 1989
- Authors: Grogan, John
- Date: 1989
- Subjects: War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3674 , http://hdl.handle.net/10962/d1003189 , War and emergency legislation -- South Africa , Internal security -- South Africa , Civil rights -- South Africa , Executive power -- South Africa , Judicial review of administrative acts -- South Africa
- Description: This work examines the legal effects of a declaration of a state of emergency under the Public Safety Act 3 of 1953 and the exercise of legislative and administrative powers pursuant thereto. The general basis of judicial control over executive action and the various devices used to limit or oust the court's jurisdiction are set out and explained. Against this background, the courts' performance of their supervisory role under the special circumstances of emergency rule is critically surveyed and assessed. The legal issues raised by the exercise of emergency powers is examined at the various levels of their deployment: first, the declaration of a state of emergency; second, the making of emergency regulations; third, their execution by means of administrative action, including detention, banning, censorship and the use of force. The major cases concerning emergency issues, both reported and unreported, are analysed in their appropriate contexts, and an overview provided of the effects of emergency regulations and orders on such freedoms as South Africans enjoy under the 'ordinary' law. Finally, an attempt is made to assess how these decisions have affected the prospect of judicial review of executive action, both in the emergency context and in the field of administrative law generally. The conclusion is that, however far the Appellate Division may appear to have gone towards eliminating the role of the law in the emergency regime, grounds remain for the courts to exercise a more vigorous supervisory role should they choose to do so in future.
- Full Text:
- Date Issued: 1989
A study of the nature, function and availability of orders of restitutio in integrum and specific performance as remedies in South African law
- Authors: Lambiris, Michael A
- Date: 1987
- Subjects: Restitutio in integrum (Roman law) Restitutio in integrum -- South Africa Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3703 , http://hdl.handle.net/10962/d1004752
- Description: This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. , KMBT_363 , Adobe Acrobat 9.53 Paper Capture Plug-in
- Full Text:
- Date Issued: 1987
- Authors: Lambiris, Michael A
- Date: 1987
- Subjects: Restitutio in integrum (Roman law) Restitutio in integrum -- South Africa Remedies (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3703 , http://hdl.handle.net/10962/d1004752
- Description: This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. , KMBT_363 , Adobe Acrobat 9.53 Paper Capture Plug-in
- Full Text:
- Date Issued: 1987
The law of culpable homicide in South Africa : with reference to the law of manslaughter in English law and the law related to negligent killing in German law
- Authors: du Plessis, J R
- Date: 1987
- Subjects: Homicide -- Law and legislation -- South Africa Homicide -- Law and legislation -- England Homicide -- Law and legislation -- Germany (West)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3670 , http://hdl.handle.net/10962/d1003185
- Description: Culpable homicide is the unlawful negligent killing of a fellow human being. As such it is in many respects a 'residual' crime being the verdict prosecutors may expect when they are unable to prove the intention to kill when prosecuting for murder. A feature of this was that in the past when defences such as, for instance, intoxication or provocation were raised at murder trials, convictions of culpable homicide were almost automatic. In recent years, under the influence of the 'purist' current in our Criminal law, intoxication has become a defence to culpable homicide and provocation resulting in loss of self-control has also become a defence to culpable homicide. These developments are unacceptable to some writers on criminal law and a move away from the purist approach to the 'traditional' or pragmatic approach is to be expected. Greater emphasis will be placed on practical results than on the achievement of logical consistency. This could result in the law of culpable homicide becoming more socially effective than it is at present.
- Full Text:
- Date Issued: 1987
- Authors: du Plessis, J R
- Date: 1987
- Subjects: Homicide -- Law and legislation -- South Africa Homicide -- Law and legislation -- England Homicide -- Law and legislation -- Germany (West)
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3670 , http://hdl.handle.net/10962/d1003185
- Description: Culpable homicide is the unlawful negligent killing of a fellow human being. As such it is in many respects a 'residual' crime being the verdict prosecutors may expect when they are unable to prove the intention to kill when prosecuting for murder. A feature of this was that in the past when defences such as, for instance, intoxication or provocation were raised at murder trials, convictions of culpable homicide were almost automatic. In recent years, under the influence of the 'purist' current in our Criminal law, intoxication has become a defence to culpable homicide and provocation resulting in loss of self-control has also become a defence to culpable homicide. These developments are unacceptable to some writers on criminal law and a move away from the purist approach to the 'traditional' or pragmatic approach is to be expected. Greater emphasis will be placed on practical results than on the achievement of logical consistency. This could result in the law of culpable homicide becoming more socially effective than it is at present.
- Full Text:
- Date Issued: 1987
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