The principle of complementarity : a critical analysis of Article 17 of the Rome Statute from an African perspective
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
- Full Text:
- Date Issued: 2014
- Authors: Mohami, Thapelo Adelice
- Date: 2014
- Subjects: Complementarity (International law) , Rome Statute of the International Criminal Court (1998 July 17) , International Criminal Court , Criminal jurisdiction -- Africa , International crimes -- Africa , Crimes against humanity -- Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3720 , http://hdl.handle.net/10962/d1013326
- Description: This thesis attempts to address perennial concerns, mostly raised in some quarters in Africa, pertaining to the development of the complementarity regime established by the Rome Statute of the International Criminal Court. It grapples with a very important question, whether the principle of complementarity, embodied in article 17 of the Rome Statute, was formulated and is being applied by the ICC in a manner that upholds the ideals and theories upon which the regime was founded. The principle of complementarity is designed to mediate the imperatives of State sovereignty and a legitimate international criminal justice system. Essentially, complementarity gives States latitude to try genocide, crimes against humanity, war crimes and aggression nationally, with the ICC only intervening where States are either unable or unwilling to prosecute genuinely. Africa constitutes the biggest regional block of membership to the Rome Statute, however, over the years; support for the ICC on the African continent has waned. It has been argued in some quarters that the ICC is anti-African and that it has interpreted and applied complementarity in a manner that diminishes State sovereignty. The thesis argues that this tension may also be due to textual deficiencies inherent within the Rome Statute, in the provisions that embody this principle. It therefore examines complementarity from a theoretical perspective to provide a comprehensive account of the system contemplated by the drafters of the Rome Statute. In this regard, the thesis argues for expansion of States’ ability at the national level to deal with international crimes without compromising international criminal justice processes or threatening State sovereignty. This is suggested as a way of relieving the tension that has characterised the relationship between African States and the ICC. The thesis further sketches out some of the complexities inherent in the modalities through which the Court may exercise its complementary jurisdiction, particularly within the African continent, given that legal systems in most African countries are particularly weak. It thus dissects the provisions that outline the principle of complementarity in tandem with the Court’s interpretation and application of complementarity in practice. Furthermore, through an exploratory survey of the referral of the Situation in Uganda, and the ICC Prosecutor’s proprio motu investigation of the Situation in Kenya, the thesis illustrates how a positive approach to complementarity can help establish a healthy cooperative synergy between the ICC and States, thereby promoting a functional expeditious criminal justice system. This will go a long way towards assuaging State’s fears that the ICC merely pays lip service to complementarity and arbitrarily supersedes national jurisdiction.
- Full Text:
- Date Issued: 2014
A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
Legal ethics and the lawyer-client relationship in South Africa: A proposal for reform using local values
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Uncatalogued
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262
- Description: Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
- Authors: Kruuse, Helen Julia
- Date: 2021-10-29
- Subjects: Uncatalogued
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10962/192765 , vital:45262
- Description: Thesis (PhD) -- Faculty of Law, Law, 2021
- Full Text:
- Date Issued: 2021-10-29
A descriptive analysis of statements taken by police officers from child complainants in sexual offence cases that examines the degree to which the form and content of the statements accord with best practice across a range of variables
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
- Authors: Johns, Alex
- Date: 2013
- Subjects: Child sexual abuse -- Law and legislation -- South Africa Police -- South Africa Child witnesses -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3664 , http://hdl.handle.net/10962/d1002611
- Description: With over twenty thousand complaints reported annually to police of child sexual abuse in South Africa, specialist police nvestigators are practised at taking statements from child complainants. This thesis analyses the fit between actualpolice practice and that recommended by international best practice. Children are a special class of witness because of their inherent social, emotional, and cognitive immaturity, and they are universally acknowledged to be very difficult witnesses to interview without the interviewer lending a bias to the process and thereby contaminating the outcome. The first half of the thesis therefore provides a detailed account of the research basis of current international best practice and of the hallmarks of that best practice which result in reliable interview outcomes. The second half of the thesis presents a descriptive analysis of 100 police statements taken from children in the Eastern Cape who had been raped in the period between 2010 and 2012. The findings of the analysis are presented in detail and then compared to the best practice summarised from the international research.
- Full Text:
- Date Issued: 2013
Juvenile diversion: keeping children out of prison
- Authors: Lewis, Sharon
- Date: 1997
- Subjects: Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3682 , http://hdl.handle.net/10962/d1003197 , Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Description: This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.
- Full Text:
- Date Issued: 1997
- Authors: Lewis, Sharon
- Date: 1997
- Subjects: Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3682 , http://hdl.handle.net/10962/d1003197 , Juvenile delinquents -- South Africa , Juvenile justice, Administration of -- South Africa
- Description: This thesis covers the topic of juvenile diversion with respect to keeping juveniles from progressing further into the justice system as well as keeping them out of prison. It deals with a number of areas. The first is diversion before an offence has been committed - prevention. Here a number of recommendations are made with respect to education of the child and the community in order to make prevention a priority when new diversion programmes are considered and introduced. The second area is that of diversion after the offence has taken place. This deals with diversion by the police at the moment of apprehension and recommends the introduction of cautions as a diversionary measure. The third aspect that is considered is diversion after the juvenile has been arrested and/or charged. The establishment of Reception and Assessment Centres and the setting up of Family Group Conferences are especially highlighted. The detention of the child until his/her trial is also investigated and it is concluded that this is an unnecessary measure except in extreme circumstances. The progression of the child's case to court is the fifth area considered. Here, recommendations are made as to the necessity for the proper training of court personnel and the need for the introduction of court imposed diversionary programmes before sentencing. With respect to diversion after the child has been found guilty, a number of suggestions are made as to the introduction of new sentencing options and new or improved institutions. Finally, recent reforms are discussed. The conclusion reached is that juveniles should not be imprisoned except in the most extreme cases, and that diversion programmes should be instituted as soon as possible as the basis of SouthAfrica's juvenile justice system. It is deemed essential that diversion begins with prevention and continues until sentencing is completed, and that all children are diverted unless this is not possible.
- Full Text:
- Date Issued: 1997
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
Insubordination in the workplace
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
- Authors: Chadd, Kevin Mark
- Date: 1999
- Subjects: Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3668 , http://hdl.handle.net/10962/d1003183 , Employees -- Dismissal of -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: This thesis traces the development of insubordination in the employment relationship. The essence of the relationship is that the employee, by contracting out his or her productive capacity, occupies a subordinate position. The primary aim is to locate and define the nature of subordination and to investigate how the breach of this position would justify dismissal as interpreted and applied by the courts. This is achieved by investigating dismissal for insubordination under the common law contract of employment, the unfair labour practice jurisdiction and the 1995 Labour Relations Act. Initially the obligation of the employee to be subordinate, an essential term of the contract of employment, is located and defined by using the tests of Control, Organisation and Dominant Impression, which theoretically indicate the true nature of insubordination. Insubordination under the common law is equated with disobedience to the lawful and reasonable instructions of the employer which were given in good faith and fell squarely within the contractual relationship. Insubordination under the unfair labour practice jurisdiction was equated with a challenge to the authority of the employer of which disobedience was a manifestation of such intention. Instructions given by the employer under the unfair labour practice jurisdiction had to be lawful, reasonable and fair. What was fair depended on the surrounding circumstances of the dismissal and a wilful and unreasonable refusal of the employee to obey the valid instructions of the employer justified dismissal Under the 1995 Labour Relations Act it is submitted that insubordination will be dealt with in essentially the same manner as under the previous jurisdiction, subject to the Act's objectives and purposes. The disobedience of the employee is to be tolerated if that employee is attempting to achieve the Act's objectives, and any dismissal as a result of the disobedience could be unfair, because the employer's conduct fiustrates the purpose of the Act. Therefore, the contractual right of the employer to expect subordination from the employee may have been whittled away to such an extent over time that it seems superficial to regard subordination as an essential term of the contract of employment.
- Full Text:
- Date Issued: 1999
Assessing the duty to exhaust internal remedies in the South African law
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
- Authors: Madebwe, Tinashe Masvimbo
- Date: 2007
- Subjects: Remedies (Law) -- South Africa Judicial review of administrative acts -- South Africa Administrative law -- South Africa Administrative law -- England Dispute resolution (Law) -- South Africa Justice, Administration of -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3709 , http://hdl.handle.net/10962/d1007253
- Description: Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
An evaluation of the regulation and enforcement of trade mark and domain name rights in South Africa
- Authors: Maunganidze, Tendai
- Date: 2007
- Subjects: Trademarks -- Law and legislation -- South Africa Internet domain names -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3714 , http://hdl.handle.net/10962/d1007571
- Description: The conflict between trade marks and domain names has been a major subject of legal debate over the past few years. The issues arising from the relationship between trade marks and domain names reveal the difficulties associated with attempts to establish mechanisms to address the problems existing between them. Trade mark laws have been adopted to resolve the trade mark and domain name conflict, resulting in more conflict. Domain name registers have to date been constructed on the basis of first come first served. Given that the generic indicators are very general, it has been inevitable that problems would arise, particularly once the commercial potential of the Internet began to be realised. Unlike domain names, trade marks are protected in ways which are more precise. Trade marks may not be imitated either exactly or in a manner so similar that it is likely to confuse a significant portion of the public. It is possible for more than one enterprise to use the same trade mark in respect of different goods, although this is not possible with domain names. This disparity in objectives leads to two core problems. The first problem relates to cybersquatters who deliberately secure Top Level Domains (TLDs) containing the names or marks of well known enterprises in order to sell them later. The second problem relates to the rival claims between parties who have genuine reasons for wanting particular TLDs, and problems associated with the resolution of such claims. The disputes between parties with legitimate conflicting interests in domain names are often not equitably and effectively resolved, thus compromising the rights of domain name holders. There is great activity in the United States of America (USA) and the United Kingdom (UK) to provide a more substantial system of governing and regulating the Internet. There is a strong movement to provide methods of arbitrating conflicts between honest claims to TLDs which conflict either in Internet terms or in trade mark law. However, these difficult policies remain to be settled. South Africa's progress towards the establishment of an effective mechanism to govern and regulate the Internet has been hindered by the absence of a policy to resolve domain related trade mark disputes. South Africa only recently drafted the South African Regulations for Alternative Domain Name Dispute Resolution (zaADRR), although the regulations have not yet been adopted. Therefore South African parties to domain name disputes continue to find solutions to their problems through the court system or foreign dispute resolution policies. The purpose of this study is firstly to examine and to comment on the basic issues of trade mark law and domain names in this area, with particular reference to South Africa, and secondly to examine the mechanisms in place for the resolution of trade mark and domain name disputes and to highlight the issues that flow from that. An additional purpose of this study is to discuss the policies of the dispute resolution mechanisms and to suggest how these policies can be improved.
- Full Text:
- Date Issued: 2007
The Rotterdam Rules : a South African perspective
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
- Authors: Gordon, Goscelin Lucy
- Date: 2013
- Subjects: Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3662 , http://hdl.handle.net/10962/d1001865 , Rotterdam Rules (2008) , Contracts, Maritime , Maritime law , Maritime law -- South Africa
- Description: The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011
- Full Text:
- Date Issued: 2013
The plea of truth and public benefit as a defence to an action for defamation in South African law
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985
- Authors: Grogan, John
- Date: 1985
- Subjects: Libel and slander -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3708 , http://hdl.handle.net/10962/d1006974
- Description: From introduction: The study begins with a detailed examination of the origins of the defence in Roman law, and traces the dispute over the role of the veritas convicii through the writings of the Roman-Dutch jurists and the decisions of the pre-Union colonial courts in South Africa. The gradual absorption of the requirement of public benefit into the contemporary law is examined. Subsequent sections attempt to extract from the case law and to systematise the rules relating to the requirements of the defence of truth and public benefit, with a view to setting forth the circumstances in which the truth may lawfully be published. Section 2 deals with problems relating to proof of the truth of the imputation; Section 3 with the problem of when publication can be said to serve the public benefit. The final section seeks to examine the juridical basis of the defence and to relate it to recent developments in the law of defamation as a whole. Brief conclusions are then drawn and recommendations made.
- Full Text:
- Date Issued: 1985
Sending and receiving: immunity sought by diplomats committing criminal offences
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
- Authors: Moutzouris, Maria
- Date: 2009
- Subjects: Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3686 , http://hdl.handle.net/10962/d1003201 , Diplomatic privileges and immunities , International crimes , Criminal law , International law
- Description: Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices. Consuls and international organizations, although their privileges and immunities are similar to diplomatic personnel, do differ and are regulated by the Vienna Convention on Consular Relations and the United Nations International Immunities respectively. These Conventions have been influenced by past practices and by three theories during different era’s namely exterritoriality, personal representation and functional necessity. The Vienna Convention on Diplomatic Relations further provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. Privileges and immunities will be considered under various main categories, namely the diplomatic mission, the diplomatic official, diplomatic staff, and families. Each category receives privileges and immunities, for example immunities enjoyed by the diplomatic mission include mission correspondence and bags. Diplomatic officials enjoy personal inviolability, immunity from jurisdiction and inviolability of diplomats’ residences and property. The staff and families of diplomatic officials too enjoy privileges and immunities. The problem of so many people receiving privileges and immunities is that there is a high likelihood of abuse. Abuses that arise are various crimes committed by diplomats, their staff and families. They are immune from local punishment and appear to be above the local law. Although the Vienna Convention on Diplomatic Relations provides remedies against diplomats, staff and families who abuse their position, it gives the impression that it is not enough. Various Acts in the United Kingdom, United States and the Republic of South Africa will be analysed in order to ascertain what governments have done to try and curb diplomatic abuses. Each will be considered and found that although they have restricted immunity from previous practices it still places the diplomats’ needs above its own citizens. Thus several suggestions have been put forward and argued whether they are successful in restricting immunity comprehensively. Such suggestions are amending the Vienna Convention on Diplomatic Relations; using the functional necessity theory to further limit immunity; forming bilateral treaties between States as a possible means to restrict or limit; and lastly establishing a Permanent International Diplomatic Criminal Court. The key question to be answered is whether diplomatic immunity is needed for the efficient functioning of foreign relations between States.
- Full Text:
- Date Issued: 2009
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
Aspects of delictual liability in pharmacy practice
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
- Authors: Lewis, Melissa Geane
- Date: 2007
- Subjects: Pharmacy -- Practice Pharmacist and patient Pharmacy -- Social aspects Pharmacists -- Malpractice Pharmacy -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3706 , http://hdl.handle.net/10962/d1005963
- Description: The thesis explores the various instances in which pharmacists may incur delictual liability for harm suffered by their patients or third parties. As such, it is primarily concerned with the field of professional negligence. The work focuses specifically on the wrongfulness, fault and causation enquiries in pharmacy malpractice cases. The discussion is set against the backdrop of the pharmacy profession's shift towards patient-orientated service in recent years and explores whether this change in the profession's social role has had any effect on the legal duties and standard of care to which pharmacists are currently bound. It is argued that, in light of the dangers posed by modern medicines and the extent to which pharmacists are professionally expected to involve themselves in patient care, pharmacists can no longer escape liability simply by accurately dispensing pharmaceutical products. Rather, they are expected to participate actively in avoiding drug-related injury by, for example, providing patient counselling, detecting invalid or erroneous prescriptions and monitoring prescription refills. Although the thesis places particular emphasis on the role of pharmacists in achieving risk management, it also argues that pharmacists are, in very limited circumstances, required to participate in the risk assessment process traditionally thought to fall exclusively into the realm of physicians. It is furthermore demonstrated that pharmacists can incur liability regardless of whether a patient's harm can also be partially attributed to the blameworthy conduct of another healthcare professional. Although the thesis concludes that pharmacists are currently exposed to greater risks of liability than they were in the past, it also shows that plaintiffs who seek damages from pharmacists will usually experience a number of difficulties in establishing liability. In particular, problems are likely to be encountered in satisfying a court as to the presence of factual causation, which is notoriously difficult to establish in drug-related cases.
- Full Text:
- Date Issued: 2007
South Africa and the International Criminal Court: investigating the link between complimentarity and implementation
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
- Authors: Kulundu, Kenneth Wanyama
- Date: 2006
- Subjects: International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3679 , http://hdl.handle.net/10962/d1003194 , International Criminal Court , International criminal courts , International crimes , International law -- South Africa , South Africa -- Law and legislation
- Description: Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.
- Full Text:
- Date Issued: 2006
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
Class actions as a means of enhancing access to justice in South Africa
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
- Authors: Marumo, Tladi
- Date: 2016
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3723 , http://hdl.handle.net/10962/d1021267
- Description: 21 years into democracy South Africa is marked by starkly contrasting experiences in the lives of its citizens. For some few, theirs remains a society defined by opulence and social, economic and political entitlements that accompany it. For a few beneficiaries, democracy has brought with it remarkable changes which have translated through their lives in economic, political and socialempowerment and wellbeing. Accompanying these changes has been the establishment and importantly, the enhancement of access to modern political and legal democratic and participatoryinstitutions of governance for these citizens. And yet, for the remaining majority of South Africans, their experience is marked by social and economic deprivation, poverty and vulnerability. These latter experiences are attributable to the historical legacy of colonialism and apartheid which continues to present itself in the form of persistent poverty and inequality in a ‘new South Africa.’ It is within this new South Africa, that this deprivation is further exacerbated by an increasingly unaccountable and unresponsive government ‘at war with its citizens.’ Service delivery protests, then have become a (if not the) way in which the poor and vulnerable get together as a collective, to try and take on the government in way they know how within their means, on deprivations of housing, electricity, water, sanitation, social assistance, healthcare and education. Finding an alternative legal means, whereby poor and vulnerable people themselves, may address these challenges is in the purpose of this thesis. However, the emphasis is not on addressing the plight of vulnerable groups through dependency from outside help, but on finding a means in which the agency (albeit constrained) of people to address their own concerns is recognised. The work investigates how law can enhance the collective agency of poor people to change their socioeconomic circumstances. In particular I investigate how the class action, a legal device which can enable people to come together collectively as a class in litigation for the enforcement of their rights of access to housing, electricity, water, sanitation, social assistance, healthcare and education, can achieve this. I provide recommendations on legal reform on how best access to courts can be made easier through the removal of barriers for impoverished communities to collectively enforce their socio-economic rights. I position the Regulation of Gatherings Act, a legislation which is aimed at affording legal protection to protest action, as a as accessible gateway into towards class litigation.
- Full Text:
- Date Issued: 2016
The legal effect of a coup d'etat on traditional constitutional concepts
- Authors: Mkwentla, Nelson Koala
- Date: 2002
- Subjects: Coups d'état , Constitutional law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3684 , http://hdl.handle.net/10962/d1003199 , Coups d'état , Constitutional law
- Description: This thesis deals with constitutional law and other legal subjects such as Jurisprudence and Judicial Review. One constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened. The usurpers may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on that awesome occasion. This thesis sets out to examine the legal aspects of a coup d’ etat. The thesis is divided into six broad sections. Part one will deal with the theoretical background. I shall discuss an overview of Kelsen’s pure theory of law. The second part deals with the scope of its application in revolutionary situations and will also touch upon the reason behind the Kelsen’s theory as shown by decided cases from country to country. The third part deals with the essence as well as the significance of the doctrine of necessity to validate unconstitutional acts in the case of a coup d’ etat. This discussion is to pave the way for the fourth part which is to explore the position of judges who took oath of office under the old constitution. I am to explain their position after a coup d’ etat. The fifth part forms the gist of my research. I shall examine the effect of a coup d’ etat on traditional constitutional concepts such as fundamental rights, separation of powers, rule of law and judicial review in the military regime. The sixth part will deal with African experience. I shall include recommendations and conclusions drawn from the Lesotho and Uganda experiences.
- Full Text:
- Date Issued: 2002
- Authors: Mkwentla, Nelson Koala
- Date: 2002
- Subjects: Coups d'état , Constitutional law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3684 , http://hdl.handle.net/10962/d1003199 , Coups d'état , Constitutional law
- Description: This thesis deals with constitutional law and other legal subjects such as Jurisprudence and Judicial Review. One constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened. The usurpers may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on that awesome occasion. This thesis sets out to examine the legal aspects of a coup d’ etat. The thesis is divided into six broad sections. Part one will deal with the theoretical background. I shall discuss an overview of Kelsen’s pure theory of law. The second part deals with the scope of its application in revolutionary situations and will also touch upon the reason behind the Kelsen’s theory as shown by decided cases from country to country. The third part deals with the essence as well as the significance of the doctrine of necessity to validate unconstitutional acts in the case of a coup d’ etat. This discussion is to pave the way for the fourth part which is to explore the position of judges who took oath of office under the old constitution. I am to explain their position after a coup d’ etat. The fifth part forms the gist of my research. I shall examine the effect of a coup d’ etat on traditional constitutional concepts such as fundamental rights, separation of powers, rule of law and judicial review in the military regime. The sixth part will deal with African experience. I shall include recommendations and conclusions drawn from the Lesotho and Uganda experiences.
- Full Text:
- Date Issued: 2002
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
International trade and environmental disputes : an analysis of Article XX of the General Agreement on Tariffs and Trade (1994) and environmental policies of the developing and developed world
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007
- Authors: Manjoro, Faith Tendayi
- Date: 2007
- Subjects: World Trade Organization General Agreement on Tariffs and Trade (Organization) Environmental protection Environmental degradation Free trade -- Environmental aspects Foreign trade regulation International trade
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3713 , http://hdl.handle.net/10962/d1007444
- Description: A major problem emanating from the trade/environment conflict is the use of trade measures, such as restrictions and sanctions, as tools for environmental protection. Proponents of free trade argue that the use of these measures is tantamount to abuse of environmental standards for protectionist ends. This is particularly so if the imposition of the standard amounts to a unilateral act which blocks the entry of a specified product into the market of another member state for reasons other than environmental protection. Environmentalists at the same time argue that free trade will lead to environmental degradation and therefore advocate for the use of trade-restrictive measures to safeguard against the destruction of the environment. The GATT has proved problematic when it comes to the resolution of trade/environment conflicts. The GATT aims at trade liberalisation yet most environmental policies are enforced through trade-restrictive devices like quotas and licences. Article XX of the GATT is anomalous: it does not explicitly mention the environment, yet member states rely on it as an environmental protection clause. This thesis discusses the various issues emanating from the trade/environmental debate. The history of Article XX is reviewed and the issues that arise in the adjudication of Articles XX (b) and (g) in a trade/environment context are analysed in light of the decisions by the GATTIWTO dispute settlement bodies. The role played by Multilateral Environmental Agreements (MEAs) in protecting the environment is discussed. However, the relationship between MEAs and the WTO is also scrutinised as these rule-making bodies often come into conflict: firstly, because they serve two differing interests - on the one hand, MEAs allow for the use of trade restrictive measures in environmental agreements and on the other, the WTO calls for unrestricted trade unless exceptional circumstances exist; and secondly, member states that are party to both the WTO and MEAs are often forced to subscribe to international trade rules that are incompatible with those in environmental agreements. The trade/environmental debate is important to both the developed and developing worlds. The developed world is in favour of environmental policies which protect the environment from degradation. On the other hand, the developing world is in desperate need of the benefits of trade liberalisation so as to cater for high unemployment rates and poor economic growth. The question thus arises as to whether, when environmental issues are promoted, developing countries will not suffer at the expense of developed nations which may engage in protectionist measures under the pretext of environmental conservation. The divide between developed and developing countries is illustrated in Chapter 5 through case studies on coal mining in the USA and South Africa. The conclusion reached is that total co-operation is essential between developed and developing states for success in safeguarding the environment from degradation. Accordingly, the trade/environmental debate cannot be isolated from the conflicting approaches in developed and developing countries. The conclusions in the final chapter seek to strike a balance between trade liberalisation and environmental protection. Recommendations are made on how the trade/environmental challenges could be dealt with and the regulation of trade restrictive devices to exclude, or at least limit, protectionism.
- Full Text:
- Date Issued: 2007