A comparison between the South African and Kenyan labour law systems
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
- Authors: Munuve, Lilian Kasyoka
- Date: 2008
- Subjects: Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10205 , http://hdl.handle.net/10948/752 , Labor laws and legislation -- South Africa , Labor laws and legislation -- Kenya , Labor law -- South Africa , Labor law -- Kenya
- Description: Labour law is a system of rules regulating the labour force in the society. These rules of labour are legal rules and are legally enforceable which means that if there is a breach of rules a party may approach a court of law or any other institution to obtain relief in respect of the breach of the rules. As a large percentage of the population at any given time in the world is involved with employment relationship, the labour relationships between employer and employee cannot be ignored as it affects both socio-economic and political factors in our society. Labour Law in general focuses on various relationships, including the relationship between the employer and employee, between the employer and a trade union or a group of employees, employers and employers’ organization. From the foregoing it can be deduced that there are two components of labour law which must be distinguished, namely individual and collective labour. The individual relationship focuses on the relationship between the employer and the employee while collective labour laws deal with matters such as legal nature of trade unions (and employers’ organization), the legal nature and enforceability of collective agreements, collective bargaining institutions and the legal consequences that flow from strikes, lock outs and other forms of industrial action. Collective labour law can therefore be said to be the body of rules which regulates the following collective relationships between: • employees and the trade union they belong to • employers and employers’ organization • employers and /or employers organization and trade unions • the government and trade unions • the government and employers organization However the collective labour law cannot be said to be absolute but is interdependent with individual labour law because the collectively agreed terms become part of the individual employment relation. This study mainly focuses on the collective labour aspect of the labour law system which shall be discussed in detail in the chapters to follow.
- Full Text:
- Date Issued: 2008
A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
- Authors: Dunywa, Mziwonke Samson
- Date: 2008
- Subjects: Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10197 , http://hdl.handle.net/10948/748 , Criminal procedure -- South Africa -- Evaluation , South Africa. Criminal Procedure Act, 1977
- Description: The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa. , Abstract
- Full Text:
- Date Issued: 2008
A critique of dispute resolution in the public service
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
- Authors: Smith, Boy Siphiwo
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10234 , http://hdl.handle.net/10948/754 , Dispute resolution (Law) -- South Africa , Civil service -- South Africa
- Description: Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
- Full Text:
- Date Issued: 2008
A study of the Amathole District Municipality's settlement plan in the light of the land reform and spatial planning measures
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
- Authors: Zenzile, Mlamli Lennox
- Date: 2008
- Subjects: Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3700 , http://hdl.handle.net/10962/d1003215 , Land reform -- South Africa -- Eastern Cape , Land tenure -- South Africa -- Eastern Cape , Land settlement -- Government policy -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Municipal government -- South Africa -- Eastern Cape , Land use -- Planning -- South Africa , Restitution -- South Africa -- Eastern Cape , Compensation (Law) -- South Africa -- Eastern Cape , Human rights -- South Africa -- Eastern Cape , Right of property -- South Africa -- Eastern Cape
- Description: This study concerns the analysis of policy, and the statutory and regulatory impact of spatial planning on the land reform programme with emphasis on the land reform settlement plan (LSRP) of the Amathole District Municipality (ADM). There is a brief historical overview of the effect of the policy of spatial segregation in both rural and urban areas of the ADM. This study demonstrates, inter alia, the challenges faced by the ADM in both consolidating and physically integrating communities that were hitherto divided across racial lines. The critical question is whether the ADM has the ability to produce a Spatial Development Framework (SDF), which will be responsive to the needs of the region and serve as a catalyst in reversing the physical distortions caused by the land-planning legislation of the apartheid past. The greatest challenge lies in meeting the developmental aspirations of the Development Facilitation Act, 1995, the Local Government: Municipal Systems Act, 2000 and the National Spatial Development Perspective, 2003. Chapter 1 deals with the purpose, research problem and the method of research, as well as the definition of terms used in this research and literature review. Chapter 2 deals with the evolution of central themes of spatial planning and land reform, spatial development plans and integrated development plans (IDPs), the alignment of Amathole SDF and Eastern Cape Spatial Development Plan and the co-ordination of spatial frameworks. Chapter 3 deals with the composition of the ADM and the evolution of the LRSP, as well as land-tenure reform programmes impacting on the Amathole Municipality region. This chapter analyses the settlement plan against spatial planning legislation, the issue of institutional arrangements and mechanisms of consolidated local planning processes. Chapter 5 deals with the thorny issue of participation of traditional leaders in municipal planning and the government’s land-reform programme. Despite the existence of legislation in this regard, implementation seems to pose some difficulties. This chapter also deals with the co-operative governance framework. Chapter 6 is a concluding chapter dealing with the gaps discovered in the Amathole Municipality in the light of existing legislation. Reference to cases is made to demonstrate the challenges confronting the ADM. One notable aspect is the issue of urban-rural dichotomy and how the two worlds are positioned in their competition for the use of space. It is evident from this research that the post-1994 policy and legislative framework and implementation machinery lacks capacity to change the current form of the apartheid city-planning paradigm, something which impacts immensely on the sustainability of the current human-settlement development programmes. Population dynamics in terms of migration are hugely driven by search for employment opportunities and better services. The efficiency and ability of the municipal spatial evelopment frameworks in directing and dictating the identification of development nodes in its juristic boundary informed by the overarching national policy and legislative framework is key in building a better South Africa.
- Full Text:
- Date Issued: 2008
An evaluation of the constitutionality of the common law crime of criminal defamation
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
- Authors: Fischer, Carl Frederich
- Date: 2008
- Subjects: Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10171 , http://hdl.handle.net/10948/749 , Libel and slander -- South Africa , Common law -- Evaluation , Criminal law -- South Africa , Criminal procedure -- South Africa
- Description: The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
- Full Text:
- Date Issued: 2008
An evaluation of the dispute resolution mechanisms of conciliation and arbitration
- Authors: Ndimurwimo, Leah Alexis
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10206 , http://hdl.handle.net/10948/753 , Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Description: South African labour laws have undergone tremendous amendments before and after independence. This paper focuses on the development after independence, therefore section 34 of the Constitution of 1996, provisions of the Labour Relations Act of 1995 and other laws which deal with labour matters and regulate the labour relations and disputes in the country will be considered. The labour laws in South Africa provide inter alia for the dispute resolution mechanisms, the manner on which disputes should be handled by different organs which are empowered to do so. My focus will be to see how alternative disputes resolution processes of conciliation and arbitration in the Eastern Cape Province aim to transform the South African and global labour market by promoting an integrated simple, quick but efficient and inexpensive dispute settlement services in order to reduce the back log of cases, maintain labour peace, promote democracy at workplace with the view of advancing economic and social justice.
- Full Text:
- Date Issued: 2008
- Authors: Ndimurwimo, Leah Alexis
- Date: 2008
- Subjects: Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10206 , http://hdl.handle.net/10948/753 , Dispute resolution (Law) -- South Africa , Mediation and conciliation, Industrial -- South Africa , Arbitration and award -- South Africa , Grievance procedures -- South Africa
- Description: South African labour laws have undergone tremendous amendments before and after independence. This paper focuses on the development after independence, therefore section 34 of the Constitution of 1996, provisions of the Labour Relations Act of 1995 and other laws which deal with labour matters and regulate the labour relations and disputes in the country will be considered. The labour laws in South Africa provide inter alia for the dispute resolution mechanisms, the manner on which disputes should be handled by different organs which are empowered to do so. My focus will be to see how alternative disputes resolution processes of conciliation and arbitration in the Eastern Cape Province aim to transform the South African and global labour market by promoting an integrated simple, quick but efficient and inexpensive dispute settlement services in order to reduce the back log of cases, maintain labour peace, promote democracy at workplace with the view of advancing economic and social justice.
- Full Text:
- Date Issued: 2008
An evaluation of the questions posed to child witnesses in court to determine whether they are developmentally appropriate
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
- Authors: Erasmus, Ronell
- Date: 2008
- Subjects: Child witnesses -- South Africa , Law -- Language
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10267 , http://hdl.handle.net/10948/747 , Child witnesses -- South Africa , Law -- Language
- Description: Children are often required to testify viva voce in criminal trials. The question arises whether children understand what is communicated to them during their testimony in court. In the courtroom, the witness serves as a source of information. In child abuse cases in particular, the meaningful participation of the child in court proceedings is crucial due to the fact that the child is often the key witness, or the only witness, for the prosecution. The proper evaluation of the child’s evidence, however, requires that all role-players involved in the judicial process have a sound knowledge of those aspects which deal with child psychology, especially the cognitive and language abilities of children who testify. The procedure that is followed in court is not understood by the ordinary lay person, even less by children, and the language used is formalistic and very specialized. Legal language in general often contains cognitively and linguistically inappropriate questions which prevent children from relating their stories. Furthermore their responses do not sufficiently reflect their knowledge and experience of the incident of alleged sexual assault. Court language creates serious problems for children and accordingly prevents them from being effective witnesses and taking part in the judicial process in a meaningful way. The researcher, in her capacity as a Regional Court Magistrate, realized that children have limited understanding of the criminal trial process and often become secondary victims as a result of a system that does not acknowledge their cognitive and linguistic developmental levels. The purpose of this research was therefore to test the validity of the following hypotheses: • During the examination of children in a criminal trial developmentally and linguistically inappropriate questions are posed to them; and This results in ineffective communication. Eight court transcripts of criminal cases heard in the regional courts of the Eastern Cape and Mpumalanga by different presiding officers were chosen at random. These transcripts were analyzed and evaluated in order to determine whether questions posed to children when they testify are cognitively and linguistically appropriate. Each question in each of the eight transcripts was numbered and analyzed. The findings of the analysis were categorized in terms of whether they were cognitively and linguistically inappropriate questions. It was clear that the majority of questions put to the child witnesses were cognitively and linguistically inappropriate. It is evident from the evaluation that the manner in which the children’s evidence in court was presented and the way in which they were questioned created a communication barrier which placed a distorted version of events before the court. It is therefore recommended that full account be taken of the cognitive and language capabilities of each particular child in order to elicit reliable information during the child’s testimony. It is of the utmost importance that questioning be conducted in such a fashion so as to ensure that the child witness understands not only the content of the questions, but also what answers or responses are expected from them. At present, acknowledgement of linguistic and cognitive developmental appropriateness, concern and comprehension for the psychology of the child witness are ignored at best, and totally exploited at worst. This lack of knowledge about child development impacts adversely upon the child’s credibility in court. To elevate and enhance the credibility of children, it is of the utmost importance for society in general and court role-players in particular to appreciate the various stages and faces of child development. The main recommendation is that court role-players should make a paradigm shift and children, including victims of sexual assault, should be given the opportunity to tell their own stories in their own language supported by other methods of communication. In evaluating any possible changes, it is necessary to adopt and develop a holistic and multi-disciplinary approach based on scientific principles. A specialized system is required to deal with children in the criminal justice system and innovative methods to achieve this are necessary. There is a strong need to change or adjust the present manner in which the criminal justice system accommodates child witnesses. Such a change or adjustment will be in the best interests of children as envisaged in section 28 of the Constitution of the Republic of South Africa Act.
- Full Text:
- Date Issued: 2008
Compensating employees who suffer work-related psychiatric harm in the course and scope of their employment
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
- Authors: Du Plessis, Meryl Candice
- Date: 2008
- Subjects: Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3671 , http://hdl.handle.net/10962/d1003186 , Workers' compensation -- Law and legislation , Liability for emotional distress , Post-traumatic stress disorder , Occupational diseases
- Description: This study aims to ascertain the legal redress available to employees who suffer psychological harm as a result of workplace stress. On a general level, it identifies and assesses some of the available policy options, particularly as they relate to the interaction of statutory workers’ compensation schemes and the common law. On a more specific level, it examines and analyses various issues: the nature and extent of compensable psychiatric harm; the legal duty on employers to protect employees’ health and well being; the role of negligence; requirements specific to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA); and the causal nexus necessary to sustain a claim. The conclusion is reached that employees should utilise the workers’ compensation system as the primary vehicle to obtain redress if they suffer from occupational psychiatric harm. However, due to the law’s generally conservative approach to psychiatric harm and intimations that the Department of Labour intends setting strict requirements for claims for psychiatric harm in terms of COIDA, the common law of delict might continue to play an important role in claims for occupational psychiatric harm. The writer recommends that a hybrid system for compensation for stress-related psychiatric harm suffered in the course and scope of employment be adopted, with the statutory compensation scheme providing relatively limited benefits and the common law providing general damages if the claimant can prove negligence on the part of the employer; that the requirement of a recognised psychiatric illness be maintained for both statutory compensation and compensation in terms of the common law; that all parties’ interests are carefully balanced in delineating the employer’s legal duty to employers and that undue weight not be accorded to the terms of the contract of employment; that more attention be paid to factual causation and the development of lternatives/complements to the traditional conditio sine qua non test; that the validity of the circular instruction on post-traumatic stress disorder (PTSD) be tested on administrative-law grounds; and that the stringent prescription requirements set by the circular instruction on PTSD be reviewed.
- Full Text:
- Date Issued: 2008
Confiscation orders in terms of the prevention of Organised Crime Act
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
- Authors: Juicy, Gavin Winston Bill
- Date: 2008
- Subjects: Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10169 , http://hdl.handle.net/10948/750 , Forfeiture -- South Africa , Organized crime -- South Africa -- Prevention
- Description: The Prevention of Organised Crime Act brought major changes to the South African criminal law context. Through the Act, major confiscatory provisions were established. The Act does not only target convicted criminals, but also any person who is in possession of tainted property that was used in the commission of offences. Civil forfeiture is the most widely used procedure in forfeiture proceedings. In the dissertation the effectiveness of criminal and civil confiscation is outlined. The historical development of confiscation and forfeiture provisions in South African is discussed with reference to the common law, legislation and international instruments and how international developments have influenced local development. This treatise consist of an overview of the confiscation provisions in the Prevention of Organised Act 121 of 1998 as one of the measures the South African legislature put in place to deal with organised crime. Since the Prevention of Organised Crime Act was passed, the courts have given meaning to what is an instrumentality of an offence and the proceeds of unlawful activities as a measure to counter organised crime. This treatise refers to those cases given the definition of an instrumentality of an offence and the proceeds of unlawful activities. For the purpose of effectively dealing with organised crime, this treatise contains a discussion on the effectiveness of criminal and civil confiscation procedure. The justification for asset forfeiture is outlined.
- Full Text:
- Date Issued: 2008
Dumping, antidumping and the future prospects for fair international trade
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
- Authors: Zvidza, Tinevimbo
- Date: 2008
- Subjects: Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11114 , http://hdl.handle.net/10353/100 , Dumping -- International trade -- International trade -- Fair trad , Foreign trade regulation -- International cooperation
- Description: More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
- Full Text:
- Date Issued: 2008
International law before municipal courts: the role of International Court of Justice decisions in domestic court proceedings with specific reference to United States case examples
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
- Authors: Mangezi, Mutsa
- Date: 2008
- Subjects: International Court of Justice -- Cases Vienna Convention on Consular Relations (1963) International and municipal law -- United States -- Cases International law -- United States -- Cases Jurisdiction (International law) -- Cases
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3711 , http://hdl.handle.net/10962/d1007325
- Description: In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.
- Full Text:
- Date Issued: 2008
Life in the suburbs after "Grootboom": the role of local government in realising housing rights in the Eastern Cape
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008
- Authors: Kruuse, Helen Julia
- Date: 2008
- Subjects: Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3678 , http://hdl.handle.net/10962/d1003193 , Right to housing , Human rights -- South Africa -- Eastern Cape , Local government -- South Africa -- Eastern Cape , Housing -- Law and legislation -- South Africa -- Eastern Cape , Housing policy -- South Africa -- Eastern Cape , Low income housing -- South Africa -- Eastern Cape
- Description: When the Government of National Unity took office in 1994, it inherited a country with severe inequalities in resource distribution and land ownership. In particular, it inherited a housing crisis which was, to a large extent, caused by apartheid legislation and policies. This research focuses on the housing crisis post-1994 by considering the impact and effect of the constitutional right to have access to adequate housing, especially for those living in intolerable conditions. It does so by utilising a social-scientific approach to the law. This approach acknowledges that the housing right must exist alongside other social phenomena and as a part of everyday life in South Africa. Accordingly, the implementation of the housing right by three local municipalities in the Eastern Cape is examined. Following an initial overview of the history of housing and local government in South Africa, the study focuses on the current legislative framework for housing and theinterpretation of the housing right (and other socio-economic rights) in certain court decisions. These decisions are discussed, not only because of the impact they have had on communities living in intolerable situations, but, as importantly, because they have developed standards against which policy and planning should be measured. These standards are used in the study to evaluate housing provision in three municipalities. The evaluation (by means of interviews and assessment of planning documentation) demonstrates that the recognition of the housing right in the Constitution and by the courts does not necessarily translate into effective recognition and implementation by the state. The research shows that the failure to plan proactively, lack of co-operative governance and inadequate controls over financial and human resources thwart the realisation of the housing right by local government. It is recommended that, in order to make the housing right a reality, research into the housing right (and indeed other socio-economic rights) should scrutinise the management of financial and human resources of the state in the context of the policy, planning and implementation environment. Where research is able to show evidence of unspent budgets, insufficient planning and mismanagement of resources, courts would be able to focus on the implementation aspect of the housing right, and ensure that it may yet have a meaningful impact on the lives of millions of some of the most vulnerable people in society.
- Full Text:
- Date Issued: 2008
Re-evaluating the law of vicarious liability in South Africa
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
- Authors: Small, Jonathan Noel
- Date: 2008
- Subjects: Independent contractors -- South Africa Law -- South Africa Torts -- South Africa Courts -- South Africa Jurisdiction -- South Africa International law -- South Africa Roman law Roman-Dutch law
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3704 , http://hdl.handle.net/10962/d1004771
- Description: This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.
- Full Text:
- Date Issued: 2008
The application of section 197 of the Labour Relations Act in an outsourcing context
- Authors: Biggs, Lynn
- Date: 2008
- Subjects: South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10193 , http://hdl.handle.net/10948/751 , South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Description: Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.
- Full Text:
- Date Issued: 2008
- Authors: Biggs, Lynn
- Date: 2008
- Subjects: South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10193 , http://hdl.handle.net/10948/751 , South Africa. Labour Relations Act (1995) , Labor laws and legislation -- South Africa , Contracting out -- Law and legislation -- South Africa
- Description: Section 197 of the Labour Relations Act (LRA) in both its original form and in its current form caused much confusion and debate. Originally it was interpreted that section 197 allowed for the automatic transfer of employees in cases where there was a transfer of the whole or part of a business, trade or undertaking as a going concern. That meant that the contracts of employment transfer to the new owner and that the employees could not refuse to be transferred. Various judges were tasked with interpreting this section in its original form and thus different interpretations emerged with the Labour Appeal Court ultimately deciding in the NEHAWU v University of Cape Town matter that employers involved in the transfer can decide between them, not to transfer the employees. The LAC further held that “outsourcing” does not necessarily entail a transfer of a business. Section 197 was amended in 2002 and the effect of the provisions is that the old employer is not required to seek the consent of the employees before their contracts are transferred and that the employment contracts transfer automatically. However, the current section has also raised some difficulties especially relating to: when does a transfer of a business as a going concern take place; what constitutes a “business”; when is an entity part of a business, trade, undertaking or service? A more glaring controversy relates to whether section 197 applies to “second-generation contracting out or outsourcing”. All provisions of the LRA should be interpreted in the context to advance economic development, social justice, labour peace and democratisation of the workplace. One of the primary objects of the LRA is to give effect to and to regulate the fundamental rights of the Constitution of the Republic of South Africa, 1996. Thus section 197 is to be interpreted in light of the objectives of the LRA as well as to promote the spirit, purport and objects of the Bill of Rights. The common law and international law are both important sources of comparison. The common law allows employers who transfer businesses free to decide whether or not the transfer will include the employees of the transferor. International law, particularly the European Union and the United Kingdom, favour the approach that when an entity is transferred, it retains its identity after the transfer and the safeguarding of employee rights in the context of business transfers. European and English jurisprudence have shown that almost any combination of events can constitute a transfer of a business.
- Full Text:
- Date Issued: 2008
The auditor's duty of reasonable care and skill and the expectation to detect fraud
- Kujinga, Benjamin Tanyaradzwa
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
- Authors: Kujinga, Benjamin Tanyaradzwa
- Date: 2008
- Subjects: Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11115 , http://hdl.handle.net/10353/104 , Auditing Standards , Accounting fraud , Financial statements -- Law and legislation
- Description: Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor’s duty is to opine whether an entity’s financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity’s directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity’s financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor’s duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company’s financial statements and not the directors? Guidelines for determining the extent of an auditor’s liability in this regard are formulated in this research.
- Full Text:
- Date Issued: 2008
The regulation of insider trading in South Africa: a roadmap for effective, competitive and adequate regulatory statutory framework
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
- Authors: Chitimira, Howard
- Date: 2008
- Subjects: Insider trading in securities , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11116 , http://hdl.handle.net/10353/230 , Insider trading in securities -- South Africa , Financial instruments -- South Africa
- Description: Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not cure the insider trading problem. What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets, to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities. The researcher has attempted to state the law as at 31 August 2007.
- Full Text:
- Date Issued: 2008
The role of the judiciary in protecting the right to freedom of expression in difficult political environments: a case study of Zimbabwe
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
- Authors: Ndawana, Duduzile
- Date: 2008
- Subjects: Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11109 , http://hdl.handle.net/10353/99 , Zimbabwe -- Politics and government , Mass media -- Zimbabwe -- Law and legislation , Freedom of speech -- Zimbabwe -- Law and legislation
- Description: The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples’ rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ‘gifts’ given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
- Full Text:
- Date Issued: 2008
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