The principle of fairness in South African criminal trials
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
- Authors: Ndude, Tembinkosi
- Date: 2022-12
- Subjects: Criminal law , Criminal law -- cases , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60090 , vital:62984
- Description: The purpose of this research is to determine the presence of the principle of fairness during criminal trials in South Africa. In determining the presence of the principle, this research will provide a short background on both the historical pre-constitution situation on the principle of fairness and the present situation on how courts in South Africa conduct themselves in the adjudication of criminal cases in ensuring fair criminal trials. The historical background partially highlights certain provisions of the Criminal Procedure Act in curtailing both the application of due processes and entrenchment of fairness during criminal trials. The arguments on the principle of fairness during criminal trials are discussed in tandem with the principle of the rule of law in the determination of the resolve our justice system has, and the use of designated legal instruments to assert the principle of fairness, for example, section 35(3) of the Constitution and the provisions of the Criminal Procedure Act 51 of 1977(herein referred "the Act") including the determination of the level of judicial interference, independence, and impartiality. The challenges of unfair trials are also explained against the concept of ubuntu which is a foundational element of fairness expressed and interpreted as such by the indigenous people living in South Africa. In the Port Elizabeth Municipality v Various Occupiers, the court describes the concept of ubuntu as part of a deep cultural heritage central to fairness and fair treatment of humans. The principle of fairness in our criminal trials is a transformative element shaped by our historical background. This is evident in S v Zuma which refers to section 25 of the Interim Constitution. The transformative element shaping principle of fairness is discussed in conjunction with section 35(3) of the new Constitution and case law. This research also notes the adversarial element of our criminal trials having considered some of the evidentiary burdens, for example, the onus of proof, rebuttal of evidence, proof beyond reasonable doubt, reverse onus, circumstantial evidence, presumption, and the adverse inference. However, these evidentiary burdens are addressed by section 35(3) of the Constitution and case law, for example the right to remain silent, the right to be presumed innocent, the right not to be compelled to give self-incriminating evidence, to be informed of the charge with sufficient detail to answer it, to choose, and be represented by a legal practitioner and to be informed of this right promptly. This work views the principle of fairness as a mechanism focussing on relegating unjustness and the ill treatment of accused persons during criminal trials to the dustbin of history. , Thesis (LLM) -- Faculty of Law, Department Criminal and Procedural Law, 2022
- Full Text: false
- Date Issued: 2022-12
The protection and promotion of the rights of journalists in Tanzania.
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
- Authors: Nnko, Ruth Anaeli
- Date: 2022-12
- Subjects: freedom of speech , Journalism , Human rights
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/60100 , vital:63095
- Description: The ability to freely acquire, search for, disseminate, and express opinions and ideas is foundational in a democratic society. When a state effectively safeguards the right to freedom of expression of all citizens, this has a rollover effect on other fundamental human rights. Freedom of expression often operates in tandem with the right to information, equality and human dignity. To this effect, freedom of expression has been recognized as a fundamental human right in various international, regional and sub-regional instruments. The scope and limitations of the right to freedom of expression has, over the years, been developed through regional and sub-regional cases. These cases have noted that, on the one hand, freedom of expression goes beyond a mere aspiration of states. State Parties to human rights’ instruments are bound by an obligation to give effect to this right. On the other hand, however, freedom of expression is not absolute and can be limited where such limitation is necessary, lawful, and proportional. Within the United Republic of Tanzania, techniques have been adopted to limit the right to freedom of expression of journalists. These range from the use of national laws to fines, suspensions, and imprisoning of journalists, to extrajudicial acts such as enforced disappearances in more extreme cases. Although, these techniques are not unique to the United Republic of Tanzania as the same ill treatment of journalists’ practices can be found in other countries. This study evaluates whether the legal framework, as well as the actions of the United Republic of Tanzania, in effect, protect and promote the right to freedom of expression specifically the rights of journalists. This study is divided in five chapters which aim to provide an in-depth coverage of the human rights systems in operation that are apply to journalists in Tanzania. The study also considers limitations in the regional, subregional and national legal frameworks and concludes with recommendations that could be adopted to ensure compliance with sub-regional, regional and international standards. , Thesis (LLM) -- Faculty Law, Criminal and Procedural Law, 2022
- Full Text:
- Date Issued: 2022-12
The protection of the rights of people with disabilities in the South African workplace: a critical analysis
- Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Authors: Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Date: 2022-11
- Subjects: People with disabilities -- Legal status, laws, etc. , Human rights -- South Africa , People with disabilities -- Government policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28444 , vital:74332
- Description: In the past, persons with disabilities were marginalised and suffered many disadvantages because of oppression. As a result, that had become an obstacle for them to enjoy their basic rights such as social, political and economic rights. Judging from the inequalities in the workplace, disability appears to be the main challenge hindering the progress of achieving equal prospects and fair treatment in many countries, including South Africa, especially in the workplace. That has resulted in most persons with disabilities living in poverty or rather depending on social support from the government in order to survive, due to employment discrimination. Policies, transformative programmes and employment laws have been promulgated to address employment discrimination. Some of the promulgated transformative programmes were developed to enforce section 9 of the Constitution. However, persons with disabilities are still faced with challenges of discriminatory practices in the workplace even today. This study is impelled by how ineffective these employment laws are, especially when safeguarding of persons with disabilities is concerned. Apart from the ineffectiveness of the current labour legislation in protecting the rights of persons with disabilities, the study aims at identifying how equality rights can be used by disability movements in order to influence policy development and implementation to advance access to work for persons with disabilities, and to further provide them with reasonable accommodation to be able to thrive within the workplace. Also, deriving some guidance from the international perspective of governing disability rights is of paramount importance in achieving equality within the working environment. It is thus extremely important to adopt compelling speedy actions to promote equal rights in the context of disability by bringing proportional aspects of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) into action. That can be achieved if the policies and legislation created can be interpreted in a manner that is equal and effective, and that promotes implementation more than theory. Therefore, dealing with discrimination against persons with disabilities signifies an essential aspect in defeating the elevated inequality in the apartheid era, which disempowers the recognised constitutional democracy. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-11
- Authors: Xokozela, Nwabisa https://orcid.org/0000-0002-6943-219X
- Date: 2022-11
- Subjects: People with disabilities -- Legal status, laws, etc. , Human rights -- South Africa , People with disabilities -- Government policy
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28444 , vital:74332
- Description: In the past, persons with disabilities were marginalised and suffered many disadvantages because of oppression. As a result, that had become an obstacle for them to enjoy their basic rights such as social, political and economic rights. Judging from the inequalities in the workplace, disability appears to be the main challenge hindering the progress of achieving equal prospects and fair treatment in many countries, including South Africa, especially in the workplace. That has resulted in most persons with disabilities living in poverty or rather depending on social support from the government in order to survive, due to employment discrimination. Policies, transformative programmes and employment laws have been promulgated to address employment discrimination. Some of the promulgated transformative programmes were developed to enforce section 9 of the Constitution. However, persons with disabilities are still faced with challenges of discriminatory practices in the workplace even today. This study is impelled by how ineffective these employment laws are, especially when safeguarding of persons with disabilities is concerned. Apart from the ineffectiveness of the current labour legislation in protecting the rights of persons with disabilities, the study aims at identifying how equality rights can be used by disability movements in order to influence policy development and implementation to advance access to work for persons with disabilities, and to further provide them with reasonable accommodation to be able to thrive within the workplace. Also, deriving some guidance from the international perspective of governing disability rights is of paramount importance in achieving equality within the working environment. It is thus extremely important to adopt compelling speedy actions to promote equal rights in the context of disability by bringing proportional aspects of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) into action. That can be achieved if the policies and legislation created can be interpreted in a manner that is equal and effective, and that promotes implementation more than theory. Therefore, dealing with discrimination against persons with disabilities signifies an essential aspect in defeating the elevated inequality in the apartheid era, which disempowers the recognised constitutional democracy. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-11
A Critical Assessment of the Legal and Policy Frameworks for Combating Child Trafficking in the Southern African Development Community
- Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
- Authors: Muvhevhi, Roseline Rumbidzai https://orcid.org/0009-0006-1024-5548
- Date: 2022-09
- Subjects: Child trafficking -- Law and legislation -- Africa, Southern , Child welfare -- Africa, Southern
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26728 , vital:65969
- Description: Child trafficking is a longstanding problem which affects victims and communities in various ways and therefore requires stern action both at the global and regional level. In the Southern African Development Community (SADC) region, the crime is closely connected to the existing socio-economic challenges such as poverty; underdevelopment; lack of equal economic opportunities; HIV/AIDS; and human rights violations. As a result, SADC States are fertile sources, transit zones and destinations for child trafficking. It is internationally recognised that it is States such as those in the SADC region that require a comprehensive approach to prevent and prosecute the crime while simultaneously ensuring victim protection. To this effect, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children is the primary instrument that seeks to provide such a comprehensive approach to child trafficking. Therefore, the current regional and national responses to child trafficking in most SADC States, are influenced by this Protocol. Despite these legislative and policy efforts to combat the crime, statistics show that in recent years child trafficking has been rapidly increasing in SADC. Thus, this research seeks to investigate why child trafficking remains prevalent in the region despite a plethora of measures against the crime. The research, therefore, assesses the effectiveness of the legal and policy measures taken by the SADC States to combat child trafficking using a qualitative approach involving analysis and interpretation of relevant legislation and policies. The primary focus is on the Trafficking Protocol as the main child trafficking instrument at the international level. The role of non-child trafficking instruments in the absence of a community instrument against the crime in SADC is also analysed. This research observes that the increasing child trafficking problem in the region is not mainly because of a lack of adequate legislation or policies but the lack of effective implementation of measures. Without a regional comprehensive and coordinated implementation approach, these measures remain weak and inadequate to fully combat child trafficking in the region. To this end, numerous legislative, policy, institutional and operational reform mechanisms to strengthen the subsisting measures against child trafficking in the region and areas for further research are recommended. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-09
The regulation of communications surveillance in Nigeria
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08
- Authors: Osuntogun, Tope Adefemi
- Date: 2022-08
- Subjects: Social Communication , Electronic surveillance --Nigeria
- Language: English
- Type: Doctoral's theses , Thesis
- Identifier: http://hdl.handle.net/10948/60885 , vital:69011
- Description: This study examines the manner in which communications surveillance is regulated in Nigeria, with the aim of providing recommendations to ensure a new surveillance regime that provides adequate safeguards for human rights, particularly the right to privacy. The rapid innovation in ICT has brought new challenges to the right to privacy, among which is communications surveillance. Communications surveillance is an important tool of law enforcement as it enables remote gathering of evidence through interception of communication and acquisition of the metadata of electronic communications. Communications surveillance could therefore be an egregious intrusion on a person’s intimate private sphere and should only be permitted only when necessary. The clandestine nature of communications surveillance, however, increases the risk of unlawfulness as a person under surveillance will be unable to challenge the process unless they are notified. The benchmark in international law is that laws regulating communications surveillance must be lawful, non-arbitrary and provide adequate safeguards for the right to privacy. This study establishes that the legal framework on communications surveillance in Nigeria does not meet this standard. Using the South African legal framework as a comparator and drawing on relevant international and regional law on the right to privacy and communications surveillance, this study recommends reforms for the current legal framework on communications surveillance in Nigeria. , Thesis (LLD) -- Faculty of Law, School of Private Law, 2022
- Full Text:
- Date Issued: 2022-08
A critical assessment of credit provision governance in South Africa with a focus on balancing the rights and responsibilities of credit providers and consumers under Section 129 of the National Credit Act 34 of 2005
- Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
- Authors: Batchelor, Bronwyn Le Ann https://orcid.org/0000-0001-7300-131X
- Date: 2022-05
- Subjects: Debtor and creditor -- South Africa , Credit control -- Law and legislation -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/26715 , vital:65967
- Description: The National Credit Act of 2005 (the NCA), described as the fourth generation of consumer protection legislation in South Africa, is the product of an initiative by the Department of Trade and Industry to address the shortcomings of the third generation of consumer protection legislation, being the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. The NCA seeks to unify legislation and departs radically from the old dispensation. Its aims are, inter alia, to provide a fair and non-discriminatory marketplace, to prohibit unfair credit practices and reckless lending, to establish national norms and standards relating to consumer credit and to promote a consistent enforcement framework relating to consumer credit. Through enactment of the NCA the government appears to have focused on the protection of consumers through pre-enforcement procedures, prohibitions on reckless lending practices, prevention of over-indebtedness, alleviation of over indebtedness, and an array of other measures. This protection is deemed necessary due to the relative unequal bargaining power between the credit provider (provider) and the consumer at the time of conclusion of an agreement. This consumer protection has, however, sometimes come at the cost of provider protection. Despite these endeavours, there is still the inevitably common occurrence of breach of the agreement by consumers and the ensuing recovery process available to providers. The relationship between the two major role players – the provider and consumer - is the epicentre of any discussion, theory or legislative enactment pertaining to credit. This study commences with an examination of the historical background and rationale for the NCA, putting into context the rules and regulations which govern the relationship between the parties when an agreement is breached as well as the remedies and recourses that are available to the aggrieved party in terms of the NCA. The common law, which acts as a stabiliser especially when there are legislative changes, is examined in relation to preenforcement procedures, breach and the remedies as affected by the NCA. The equitable balancing of the rights and responsibilities of these two major role players is essential to the continued well-being of not only the parties but also the credit industry and economy as a whole. The most common way for individuals to purchase any large asset like a home or motor vehicle is to approach a financial institution for provision of a loan or credit agreement. To protect its interest, the financial institution would normally register a mortgage bond over the property or hold the title of the motor vehicle until all instalments have been settled. The problem arises when the consumer defaults on repayment of the loan or credit agreement. The financial institution would then be forced to institute legal proceedings to for example foreclose on the bond and repossess the property or motor vehicle. The preenforcement procedure finds itself in the centre of the tug of war between the parties in that this is the area and time that both parties require their rights and interests to be protected. The pre-enforcement procedures determine to a large extent, if properly implemented, how many agreements are seen to successful finalisation versus the alternative of those being cancelled and / or enforcement pursued through litigation by the provider. Successful implementation of agreements and repayment of debt would support a healthy credit industry and therefore, a strong economy. This is also the favoured outcome by the NCA. Section 129 of the NCA encapsulates the pre-enforcement procedure and thus determines balancing the parties’ rights and responsibilities through its interpretation and application. The section, however, would appear to fall short in that the delivery requirement of the notice is not adequately defined and has therefore resulted in many disputes, interpretations and two subsequent amendments to the section by the National Credit Amendment Act of 2014 and 2019. The purpose of this study is to critically analyse section 129 of the NCA and determine if the rights of both the consumer and provider have been equally protected, with particular reference to the burden of bringing the section 129 notice to the attention of the consumer. The question posed by all parties involved is always inevitably: Must the section 129 notice come to the actual knowledge of the consumer in order for it to be valid? The answer to this question has varied between two schools of thought. The first school of thought, being the pro-provider approach, answers the question in the negative and holds that as long as the provider has met certain delivery requirements their duty has been fulfilled whether or not the consumer actually receives the notice. The second school of thought, being the pro-consumer approach, answers the questions in the affirmative and requires the provider to carry the burden of ensuring the consumer actually receives the notice in order for it to be valid. There are numerous reasons in support of both schools of thought. It is hoped that this study will make a helpful contribution to the balanced interpretation of section 129. The study aims to provide a consistent interpretation of the section whilst balancing the rights of the consumer and provider respectively. , Thesis (LLD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
A critical examination of civil enforcement of competition law under section 65(6) of the Competition Act 89 of 1998: a comparative study
- Authors: Pepeteni, Hlengiwe C
- Date: 2022-05
- Subjects: Antitrust law , Law enforcement
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28455 , vital:74335
- Description: Since the enactment of the Competition Act 89 of 1998 enforcement of competition law has steadily been on the rise particularly informed by public enforcement. Recently, some judgments have been delivered by the enforcement institutions established by the Act. The latter judgments have landed themselves before civil courts lodged by private individuals. In almost all the cases are individuals who suffered harm due to a prohibited practice committed by firms in breach of section 8 of the Act regulating abuse of dominance. The challenge/difficulty that courts are facing so far is that the Act makes provision for compensation only where firms are found to have breached the Act through the public enforcement process. As regards private enforcement, the Act is not clear. The latter is a challenge when private individuals wish to be compensated. The rules of interpretation are not clear on what route must be followed by individual victims of a breach of abuse of dominance by firms. Section 65 of the Competition Act provides that the civil courts may adjudicate on private civil claims of competition law if and when the competition authorities have ruled that the firm in question has committed prohibited conduct in terms of the Competition. Therefore, the thorny question is whether section 65(6) of the Competition Act refers to or can be interpreted to refer to a common law delictual or statutory claim. The understanding of how the section must be interpreted is important because the understanding of this will make it certain what consequences flow from the section. Currently, few cases have already been decided on the subject, however, the cases have given conflicting interpretations of the section, the study therefore, seeks to investigate whether section 65(6) gives rise to a statutory or a common law delictual claim. , Thesis (LLM) -- Faculty of Laws, 2022
- Full Text:
- Date Issued: 2022-05
- Authors: Pepeteni, Hlengiwe C
- Date: 2022-05
- Subjects: Antitrust law , Law enforcement
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28455 , vital:74335
- Description: Since the enactment of the Competition Act 89 of 1998 enforcement of competition law has steadily been on the rise particularly informed by public enforcement. Recently, some judgments have been delivered by the enforcement institutions established by the Act. The latter judgments have landed themselves before civil courts lodged by private individuals. In almost all the cases are individuals who suffered harm due to a prohibited practice committed by firms in breach of section 8 of the Act regulating abuse of dominance. The challenge/difficulty that courts are facing so far is that the Act makes provision for compensation only where firms are found to have breached the Act through the public enforcement process. As regards private enforcement, the Act is not clear. The latter is a challenge when private individuals wish to be compensated. The rules of interpretation are not clear on what route must be followed by individual victims of a breach of abuse of dominance by firms. Section 65 of the Competition Act provides that the civil courts may adjudicate on private civil claims of competition law if and when the competition authorities have ruled that the firm in question has committed prohibited conduct in terms of the Competition. Therefore, the thorny question is whether section 65(6) of the Competition Act refers to or can be interpreted to refer to a common law delictual or statutory claim. The understanding of how the section must be interpreted is important because the understanding of this will make it certain what consequences flow from the section. Currently, few cases have already been decided on the subject, however, the cases have given conflicting interpretations of the section, the study therefore, seeks to investigate whether section 65(6) gives rise to a statutory or a common law delictual claim. , Thesis (LLM) -- Faculty of Laws, 2022
- Full Text:
- Date Issued: 2022-05
Examination of the interpretation of public interest considerations: an evaluation of mergers under the Competition Act 1998
- Ndiki, Namhla https://orcid.org/0000-0002-3686-4287
- Authors: Ndiki, Namhla https://orcid.org/0000-0002-3686-4287
- Date: 2022-05
- Subjects: Antitrust law , Public interest law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28497 , vital:74343
- Description: The assessment of mergers is firstly whether they will lessen or prevent competition, secondly whether there are any technological or pro-competitive gains justifying an otherwise anticompetitive merger, and lastly whether they are justified on grounds of public interests. Section 12A(3) of the Competition Act states that when determining whether a merger can or cannot be justified on public interest grounds the Competition Commission or the Competition Tribunal must consider several factors. These include: the effect that the merger will have on a particular industrial sector or region, employment, the ability of small businesses or firms controlled or owned by historically disadvantaged persons to enter into, compete, expand in the market, and the ability of national industries to compete in international markets as well as the promotion of a greater spread of ownership, in particular, to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market. Therefore, this study seeks to determine whether courts have brought the public interests principles to bear when interpreting agreements parties enter into to facilitate mergers. To this study, the latter question is important because it seeks to determine whether public interests are given effect to when considering the historical imbalance/context from which South African competition law comes. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
- Authors: Ndiki, Namhla https://orcid.org/0000-0002-3686-4287
- Date: 2022-05
- Subjects: Antitrust law , Public interest law
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28497 , vital:74343
- Description: The assessment of mergers is firstly whether they will lessen or prevent competition, secondly whether there are any technological or pro-competitive gains justifying an otherwise anticompetitive merger, and lastly whether they are justified on grounds of public interests. Section 12A(3) of the Competition Act states that when determining whether a merger can or cannot be justified on public interest grounds the Competition Commission or the Competition Tribunal must consider several factors. These include: the effect that the merger will have on a particular industrial sector or region, employment, the ability of small businesses or firms controlled or owned by historically disadvantaged persons to enter into, compete, expand in the market, and the ability of national industries to compete in international markets as well as the promotion of a greater spread of ownership, in particular, to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market. Therefore, this study seeks to determine whether courts have brought the public interests principles to bear when interpreting agreements parties enter into to facilitate mergers. To this study, the latter question is important because it seeks to determine whether public interests are given effect to when considering the historical imbalance/context from which South African competition law comes. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-05
An employer's ability to substitute a disciplinary hearing sanction
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Hlwatika, Siphile
- Date: 2022-04
- Subjects: Employees--Dismissal of--Law and legislation , Labor discipline--South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55690 , vital:53407
- Description: It is common practice for employers to appoint external disciplinary hearing chairpersons to preside over a disciplinary hearing which has been convened for purposes of investigating allegations of misconduct against an employee. The external chairperson is ordinarily mandated to decide on guilt, and to the extent that there is a guilty finding, to recommend or impose the appropriate disciplinary sanction. Employers often tend to have expectations that the external chairperson will, after having found the employee guilty of the alleged misconduct, impose a sanction of dismissal. The expected outcome of dismissal, however, does not always occur. An external chairperson may impose a sanction short of dismissal after considering an disciplinary sanction may result in the employer instituting an internal review process to review the external chairperson employers may resort to unilaterally substituting the external disciplinary sanction with a sanction of dismissal. or the collective agreement regulating the disciplinary procedure in the workplace may or may not make provision for the substitution of the disciplinary sanction. In circumstances where there is no provision for the substitution of the disciplinary sanction, t questions regarding the applicability of the double jeopardy principle which means, in an employment context, that an employee should not be subjected to more than one disciplinary hearing on disciplinary charges arising from the same set of facts. It is, however, a well-established principle that employers who are classified as organs of state can review their own decisions. This includes decisions of chairpersons who are appointed preside over disciplinary hearings and decide on the appropriate disciplinary sanction. In the latter case, and in circumstances where the organ of state is dissatisfied with the disciplinary sanction, it may institute review proceedings in the Labour available to organs of state and not private-sector employers. This research seeks to determine whether it is permissible for an employer to substitute an external , and, if so, the circumstances under which an employer is allowed to do so and the procedure which should be followed in such an instance. , Thesis (LMM) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The application of the prescription act in labour disputes
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Mncanca, Siyamthanda
- Date: 2022-04
- Subjects: Port Elizabeth (South Africa) , Eastern Cape (South Africa) , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55498 , vital:52375
- Description: It is inevitable that in an employment relationship grievances and conflicts may emerge.1 This is attested to by the large volume of 193 732 disputes that were referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) during the 2018/19 financial year.2 In the event where an employee is dismissed from work and he decides to challenge the dismissal, section 191 of the Labour Relations Act (LRA) grants the employee a right to refer the matter to the CCMA for conciliation or arbitration.3 The purpose of referring the disputes to the CCMA is to support an establishment of a voluntary, free of charge and expeditious mechanisms for labour disputes settlement and allow parties to resolve their disputes through a consensus based process before taking the route of a court process.4 There are time frames that are provided for the referral of disputes to the CCMA. Section 191 determines these time frames by stating that an employee must refer their alleged unfair dismissal to the CCMA within 30 days or 90 days when a dispute relates to an unfair labour practice in accordance with section 191(1)(b)(ii) of the LRA.5 The rationale behind these time frames was outlined in the Constitutional Court (CC) judgement of Toyota SA Motors (Pty) Ltd v CCMA,6 as a means to bring about the expeditious resolution of labour disputes which by their nature, require speedy resolution. , Thesis (L.L.M.) -- Faculty of Law, Mercantile Law, 2022
- Full Text:
- Date Issued: 2022-04
The criminal liability of health care practitioners for culpable homicide
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
- Authors: Dweba, Asavela
- Date: 2022-04
- Subjects: South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55511 , vital:52594
- Description: South African health societies and associations have allied to call for reform in the criminal law system involving the prosecution of health care practitioners, specifically on charges of culpable homicide. Warranted by the spate of criminal prosecutions against healthcare practitioners and the need for reform, this treatise investigates the criminal liability of healthcare practitioners for culpable homicide. Overall, this study aims to determine the recognition of criminal liability of healthcare practitioners, requirements for culpability, the level of negligence that constitutes culpable homicide, and whether the South African law can adjust the threshold for criminal liability in culpable homicide. An analysis of the consequences of legal literature concerning the offence of culpable homicide and medical negligence is provided. In addition, this study examines pertinent case law to devise a strategy for law reform in South Africa and the development of common law. The study includes a comparative study of foreign jurisdictions to incorporate the position in England, Scotland, New Zealand, India, and Canada from which South Africa can adopt some principles within the South African context. The analysis revealed that South Africa has a low threshold in the form of ordinary negligence required to establish criminal liability in cases of culpable homicide while a higher threshold is required for the selected foreign jurisdictions. Furthermore, this treatise contends that the current South African criminal justice regime is lacking in identifying the ideal degree of fault required for criminal conduct. Thus, reform of South Africa’s approach in dealing with healthcare practitioners suspected/ accused of causing the death of patients under medical care is necessary. This study recommends that the South African criminal law justice system should be developed by way of legislative intervention in which ‘gross negligence or recklessness’ will serve as a measure to criminalise the conduct of healthcare practitioners. This study acknowledges the noble role played by healthcare practitioners in the society and notes that medicine is not an exact science. Therefore, this treatise does not advocate a mandatory exoneration of criminal liability of healthcare practitioners. Rather, for a fair and evidence-based prosecution of reckless medical practices. , Thesis (LLM) -- Faculty of Law, Department of Criminal and Procedural Law, 2021
- Full Text:
- Date Issued: 2022-04
The regulation of renewable energy in South Africa
- Van Huyssteen, Cornelis Roelof, Adelman, Sam
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
- Authors: Van Huyssteen, Cornelis Roelof , Adelman, Sam
- Date: 2022-04
- Subjects: International law and human rights , Climatic changes -- Social aspects --South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/56382 , vital:56617
- Description: As a developing country, South Africa’s demand for electricity is accelerating in order to facilitate economic growth and provide the necessary basic services to its people. Historically, the South African government has primarily opted to cater for the country’s electricity needs by means of coal as an affordable fossil fuel-based energy source. However, amidst the world’s changing climate and the plummeting costs of renewable energy technologies, there is increasing global pressure to phase out the use of fossil fuels as the key contributor to anthropogenic climate change and to move towards renewables as the world’s main source of energy. The primary problem highlighted in this thesis is the fact that South Africa’s energy laws have been developed to accommodate fossil fuels as the main source of energy, effectively neglecting the need to incorporate provisions that support and regulate the renewable energy sector. The thesis argues for the need for South Africa to transition away from fossil-fuel and nuclear based energy solutions based on the potential of renewables not only to improve energy security, but also to contribute towards social, economic, and environmental development. However, the transition to renewables and the realisation of its associated benefits will only be realised by means of a regulatory framework dedicated to the development of the renewable energy sector. The researcher argues that, in their current form, South African laws and policies limits the growth of the renewable energy sector. In order to propose reform and to develop the law to support renewable energy sufficiently, the thesis explores international law as well as global best practice in the United Kingdom and Germany related to renewable energy regulation. The comparative analysis allows the researcher to make recommendations to inform the development of South Africa’s renewable energy legal framework. It is argued that, given South Africa’s status as a developing country, such reform must be based upon the fundamental principles of climate change mitigation and social development. Ultimately, it is submitted that, a law dedicated to renewable energy can, and must, play an imperative role in realising the concept of sustainable development in South Africa. , Thesis (LLD) -- Faculty of Law , School of Public Law, 2022
- Full Text:
- Date Issued: 2022-04
Accountability of the police to provincial governments in South Africa: a comparative analysis of law and practice in the eastern and Western Cape Provinces
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
- Authors: Tyabazayo, Phumlani
- Date: 2022-03
- Subjects: Police -- South Africa , Police power , Police administration
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22456 , vital:52323
- Description: The 2012 Constitutional Court matter between the national minister of police and the premier of the Western Cape (Minister of Police v Premier of the Western Cape 2013 (12) BCLR 1365 (CC)) concerning the exercise of provincial policing powers as provided for in chapter 11 of the Constitution of South Africa laid bare the tension between the national and provincial governments in the exercise of these powers. Despite the Court’s determination of the dispute, there are still grey areas regarding the constitutional obligations of the provinces with regard to policing. The result has been a lack of clarity and uniformity in the exercise of policing powers by various provinces in South Africa. Based on documentary analysis and interviews, this study explores the parameters of the powers of provinces in policing matters as well as the extent of accountability of the police to provincial governments in South Africa by comparing the law and practice in the Eastern Cape and Western Cape provinces. The study argues that if provinces are to effectively exercise their constitutional powers in policing matters, there needs to be a degree of uniformity in and a mutual understanding of the extent and parameters of provincial policing powers. Only when they clearly understand their powers in policing matters will provincial governments be able to develop legal and policy frameworks to consolidate their powers and effectively hold the police accountable. The study considers whether the current policing powers afforded to provinces are adequate and if not, whether constitutional reform is needed to afford provinces more and clearer policing powers. Furthermore, within the context of participatory democracy, the study takes an in-depth look into the accountability role of Community Police Forums. The study finds that, generally, provincial governments fall short in fulfilling the obligations imposed on them by the Constitution. The study further finds that, in practice, there is still uncertainty about the role of the provincial governments and the Civilian Secretariat for Police in policing matters. Among the recommendations of this study is that section 206 (1) of the Constitution be amended to give provinces power to formulate policing policy in respect of issues peculiar to a particular province. The study also proposes a model to enhance the exercise of provincial policing powers by provincial governments in South Africa. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-03
Considering the scope of legal personality with special reference to the proposition of rights for non-human animals: the Al Shuwaikh Case and its implications for the development of South African Law
- Humpel, Daniel https://orcid.org/0009-0007-9961-6882
- Authors: Humpel, Daniel https://orcid.org/0009-0007-9961-6882
- Date: 2022-02
- Subjects: Animal welfare -- Law and legislation -- South Africa , Animal rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28402 , vital:74290
- Description: The treatment of sheep during export processes involving the Al Shuwaikh case has raised questions again about the scope and depth of non-human animal protections in South Africa and in particular the increasingly contested legal status of non-human animals under modern South African law. Currently non-human animals are classified as legal objects/things, and thus deprived of the benefits and protections afforded human animals, who are classified as legal subjects. Legal subjectivity is in turn the exclusive attribute of one who is considered a legal person i.e., a being or entity recognized under law as having legal personality. Fromthis basic distinction and concept in the law, all of the rights duties and capacities of humans and their collective legal vehicles arise. Equally, it is from their lack of legal personality under this legal classification, that non-human animals do not have/bear rights duties and capacities, and as a consequence are subject to the treatment that would otherwise be unacceptable if they were human animals. However, while this fundamental classification might seem to be an absolute in the legal system, the concept of legal personality is in fact a malleable construct, and has in fact changed and been changed through the ages in response to changing social mores of each age. Animal rights activists suggest therefore that one solution for addressing concerns regarding animal welfare would be to extend the scope of legal personality to include non-human animals. While prima face theoretically legally possible, this suggestion has been resisted on a variety of practical and intellectual grounds, thus creating a still contested area of social, and thus by natural extension, jurisprudential debate. Differing perceptions of the full nature and current capacity of the concept of legal personality lie at the heart of the debate/this contestation. Inspired by the Al Shuwaikh case, which serves as a new millennium factual basis/lens through which to beg the question of the exclusive attribution of personality to human but not non-human animals (or indeed other living or non-living entities), this thesis thus revisits the notion of legal personality, tracking its historical development and highlighting its de facto capacity for adaptation over time to respond changing social mores. Key changes and expansions of the construct are isolated, collected and compiled to provide a grounded overview of its larger potential for adaptation. Thereafter, and as a consequence of the aforementioned, the thesis then reflects on the current animal protection regime in South Africa, with due reference to glosses, where appropriate, gained to the perspectives gained from other jurisdictions about the potential for the extension of the concept of legal personality. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-02
- Authors: Humpel, Daniel https://orcid.org/0009-0007-9961-6882
- Date: 2022-02
- Subjects: Animal welfare -- Law and legislation -- South Africa , Animal rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28402 , vital:74290
- Description: The treatment of sheep during export processes involving the Al Shuwaikh case has raised questions again about the scope and depth of non-human animal protections in South Africa and in particular the increasingly contested legal status of non-human animals under modern South African law. Currently non-human animals are classified as legal objects/things, and thus deprived of the benefits and protections afforded human animals, who are classified as legal subjects. Legal subjectivity is in turn the exclusive attribute of one who is considered a legal person i.e., a being or entity recognized under law as having legal personality. Fromthis basic distinction and concept in the law, all of the rights duties and capacities of humans and their collective legal vehicles arise. Equally, it is from their lack of legal personality under this legal classification, that non-human animals do not have/bear rights duties and capacities, and as a consequence are subject to the treatment that would otherwise be unacceptable if they were human animals. However, while this fundamental classification might seem to be an absolute in the legal system, the concept of legal personality is in fact a malleable construct, and has in fact changed and been changed through the ages in response to changing social mores of each age. Animal rights activists suggest therefore that one solution for addressing concerns regarding animal welfare would be to extend the scope of legal personality to include non-human animals. While prima face theoretically legally possible, this suggestion has been resisted on a variety of practical and intellectual grounds, thus creating a still contested area of social, and thus by natural extension, jurisprudential debate. Differing perceptions of the full nature and current capacity of the concept of legal personality lie at the heart of the debate/this contestation. Inspired by the Al Shuwaikh case, which serves as a new millennium factual basis/lens through which to beg the question of the exclusive attribution of personality to human but not non-human animals (or indeed other living or non-living entities), this thesis thus revisits the notion of legal personality, tracking its historical development and highlighting its de facto capacity for adaptation over time to respond changing social mores. Key changes and expansions of the construct are isolated, collected and compiled to provide a grounded overview of its larger potential for adaptation. Thereafter, and as a consequence of the aforementioned, the thesis then reflects on the current animal protection regime in South Africa, with due reference to glosses, where appropriate, gained to the perspectives gained from other jurisdictions about the potential for the extension of the concept of legal personality. , Thesis (LLM) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-02
The place of traditional circumcision in the initiation into manhood among the amaXhosa people of the Eastern Cape Province - South Africa: a human rights perspective
- Authors: Mkuzo, Pearl Zukiswa
- Date: 2022-02
- Subjects: Circumcision -- South Africa -- Eastern Cape , Xhosa (African people) -- Health and hygiene
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28388 , vital:74286
- Description: This desktop study sought to investigate the place of traditional circumcision in the initiation into manhood among the amaXhosa people of South Africa. It also explores this phenomenon from the human rights perspective. This is because male initiation is a highly significant Xhosa rite of passage that acts as the instrument for a transition from boyhood to manhood. In Xhosa custom, traditional circumcision is generally performed on boys (young males) ranging between the ages of 18 and 25. Traditionally, the circumcision ritual is a complex one involving several different stages each closely regulated by principles and requirements. Regrettably, failure to go to the initiation school results in a boy being socially stigmatized and orchestrated by society. In recent years many concerns have arisen due to the high number of deaths after circumcision during initiation sessions. This rite of passage to manhood among Xhosa people is riddled with numerous complications and concerns that raise questions regarding the initiates' human rights. Each year thousands of youths enter initiation schools during initiation seasons. Some of these initiates experience medical complications due to a number of factors that require treatment, among others, septicemia, gangrene, severe dehydration, genital mutilation, penal amputation, maltreatment, assault, abuse, and violence which ultimately may lead to death of the initiates. The present researcher is of the opinion that the physical and emotional harm experienced by initiates is not compatible with a range of basic human rights, including the right to liberty, the right to health, the right to be free from torture, the right to security of person, the right to privacy and the right to life. One can argue that when the practice takes place under unhygienic, uncoordinated, or illdisciplined conditions, the procedure poses a threat to health and life, thus, violating the core human rights instrument namely: The United Nations Human Rights Declarations, namely, the Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC), the 1996 Constitution of the Republic of South Africa and the Children's Act. These instruments have several provisions which are applicable to the circumcision of children during initiation. The present circumstances surrounding the initiation practice are also evaluated, namely, the outcry of the church and other leaders, who are calling for the practice to be abolished, is noted. The present researcher asserts that, because of the importance of this practice to Xhosa culture, calling for its abolition is not a solution. Instead, it is suggested that the practice should rather be redefined to better contribute to the broader challenges of moral regeneration in South Africa. , Thesis (MPhil) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-02
- Authors: Mkuzo, Pearl Zukiswa
- Date: 2022-02
- Subjects: Circumcision -- South Africa -- Eastern Cape , Xhosa (African people) -- Health and hygiene
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28388 , vital:74286
- Description: This desktop study sought to investigate the place of traditional circumcision in the initiation into manhood among the amaXhosa people of South Africa. It also explores this phenomenon from the human rights perspective. This is because male initiation is a highly significant Xhosa rite of passage that acts as the instrument for a transition from boyhood to manhood. In Xhosa custom, traditional circumcision is generally performed on boys (young males) ranging between the ages of 18 and 25. Traditionally, the circumcision ritual is a complex one involving several different stages each closely regulated by principles and requirements. Regrettably, failure to go to the initiation school results in a boy being socially stigmatized and orchestrated by society. In recent years many concerns have arisen due to the high number of deaths after circumcision during initiation sessions. This rite of passage to manhood among Xhosa people is riddled with numerous complications and concerns that raise questions regarding the initiates' human rights. Each year thousands of youths enter initiation schools during initiation seasons. Some of these initiates experience medical complications due to a number of factors that require treatment, among others, septicemia, gangrene, severe dehydration, genital mutilation, penal amputation, maltreatment, assault, abuse, and violence which ultimately may lead to death of the initiates. The present researcher is of the opinion that the physical and emotional harm experienced by initiates is not compatible with a range of basic human rights, including the right to liberty, the right to health, the right to be free from torture, the right to security of person, the right to privacy and the right to life. One can argue that when the practice takes place under unhygienic, uncoordinated, or illdisciplined conditions, the procedure poses a threat to health and life, thus, violating the core human rights instrument namely: The United Nations Human Rights Declarations, namely, the Convention on the Rights of the Child (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC), the 1996 Constitution of the Republic of South Africa and the Children's Act. These instruments have several provisions which are applicable to the circumcision of children during initiation. The present circumstances surrounding the initiation practice are also evaluated, namely, the outcry of the church and other leaders, who are calling for the practice to be abolished, is noted. The present researcher asserts that, because of the importance of this practice to Xhosa culture, calling for its abolition is not a solution. Instead, it is suggested that the practice should rather be redefined to better contribute to the broader challenges of moral regeneration in South Africa. , Thesis (MPhil) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-02
Standards for the admission of forensic scientific evidence in criminal trials through an expert: Lessons and guidelines for South Africa
- Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
- Authors: Chetty, Nasholan https://orcid.org/0000-0002-7053-5831
- Date: 2022-01
- Subjects: Evidence, Expert , Forensic sciences , Crime scene searches
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/22467 , vital:52324
- Description: Forensic evidence has always captured the imagination of the public and legal fraternity since science entered the courtroom. The first case of forensic science was heard in the matter of John Boodle in 1832, and criminal courts have now come accustomed to hearing a variety of matters that have some form of forensic science evidence in them. Television shows like Crime Scene Investigation and Making a Murderer has heightened the expectation that is placed on the sciences and the ease of which a conviction can be secured or a suspect apprehended. The spate of wrongful convictions that have been overturned, particularly in the United States of America has raised serious questions regarding the use of forensic evidence in courts. Moreover, the people “in-charge” or the so-called experts for providing this analysis’s have come under intense scrutiny. Many reports have been compiled after investigations were conducted into the state of expert evidence in those various jurisdictions. The use of an expert to provide critical details regarding aspects of a crime that goes beyond the ordinary education of presiding officers and legal practitioners has posed to the court, many questions as to how they are being used and whether their evidence should be used. The use of an expert is not new to the South African legal system, and the same can be said for many foreign jurisdictions, but the problem now experienced by courts is whether these experts are in-fact “experts” and whether the information conveyed to the court can be relied upon especially if the evidence is of a scientific nature. An investigation into how expert evidence is presented and evaluated in South African criminal courts will reveal many appealing aspects regarding the development of how an expert is used and how they should be used as well as how their evidence should be evaluated. , Thesis (PhD) -- Faculty of Law, 2022
- Full Text:
- Date Issued: 2022-01
Integration of clinical legal education with procedural law modules
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Welgemoed, Marc
- Date: 2021-12
- Subjects: Law -- Study and teaching (Clinical education) , Procedure law
- Language: English
- Type: Doctoral theses , Thesis
- Identifier: http://hdl.handle.net/10948/56123 , vital:55571
- Description: This research evaluates the role that Clinical Legal Education (CLE) can and should play in the teaching and learning of procedural law modules, ie Civil Procedure, Criminal Procedure and the Law of Evidence. It is argued that the doctrine of transformative constitutionalism provides a sound theoretical basis for the integration of CLE in the teaching and learning of procedural law modules in that there is a constitutional imperative on law schools to train law graduates, who are ready for entry into legal practice, as far as adequate theoretical knowledge and practical skills are concerned. This research provides an indication of how the integration of CLE with procedural law modules can improve the appreciation of the values of the Constitution of the Republic of South Africa 108 of 1996 by law graduates. Graduates will learn the importance of advancing social and procedural justice when rendering legal services to members of the public. Furthermore, graduates will be equipped with valuable graduate attributes required for legal practice. The conclusion of this research is that an integrated teaching and learning methodology, in relation to procedural law modules, will result in producing better law graduates for legal practice. The result of this will be that future legal practitioners, who can serve the public in a professional, ethical and accountable manner as envisaged by the Legal Practice Act 28 of 2014, immediately after graduating from law schools, will be produced. , Thesis (LLD) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
Marine Plastic Pollution
- Vilakazi, Bathobile Thandazile Unittah
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Vilakazi, Bathobile Thandazile Unittah
- Date: 2021-12
- Subjects: Waste minimization --Law and legislation -- South Africa , Plastic marine debris , South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/55605 , vital:53364
- Description: Human activities can alter the ordinary operation of Earth-system processes in such a way that it escalates risks in societies across the globe. One of the more visible human activities is the production, consumption and disposal of plastic items and/or materials, the consequences of which are borne by marine life. The dissertation is founded on the premise that conservation of the marine environment must be a priority for all States. States must take responsibility for the prevention of pollution of the marine environment and further take accountability where activities within their territory are causing pollution of the marine environment through the enforcement of legislative measures. The dissertation is drafted in a manner that aims to ultimately deduce whether the current pollution laws in South Africa adequately address marine plastic pollution (MPP). As such, Chapter Two relies on the regulatory position of MPP at the international level. Various legal instruments relating to marine pollution are expounded on such as the LOSC, MARPOL, London Convention and other regional instruments relating particularly to the African continent. The chapter aims to detail the most relevant global instruments that South Africa is a party to and which promote and mandate States parties to protect the marine environment through the implementation and enforcement of regulatory measures. The global measures either exclusively address MPP or provide general provisions for marine environment protection. Chapter Three and Four of the dissertation provide a critical analysis of the legal measures adopted at the national, provincial and local levels respectively to control, reduce and prevent pollution, including MPP. The Constitution of the Republic of South Africa, 1996 requires the national, provincial and local levels of government to co-operate with each other to provide ―effective, efficient, transparent, accountable and coherent governance‖. Therefore, it is essential for this study to investigate the regulation of MPP at all levels of government particularly when the programmes of the national and provincial government must be implemented by local government. The regulatory measures at these levels of government promote the protection of the environment and further prohibit the illegal dumping of waste and littering. They also encourage communities to reduce, re-use and recycle waste. Additionally, the national government further commits itself to adopting regulations to x plastic carrier bags and plastic flat bags. These regulations will urge the plastic industry to produce recyclable plastic bags which will further encourage consumers to recycle and therefore, decrease the entry of plastic into the marine environment. The conclusion in Chapter Five is inferred from Chapter One to Chapter Four of the dissertation. Several shortcomings were observed in the regulatory measures discussed in Chapter Three and Chapter Four, most of which relate to a legal framework weakened by a lack of knowledge on MPP and therefore, an inability to firstly develop measures that expressly deal with the issue, or secondly, develop comprehensive legislative measures that address various types of marine pollution. It is therefore submitted that although South Africa‘s pollution laws in general are exceptional and do address marine pollution, they fail to address MPP sufficiently. As such, Chapter Five presents several policy recommendations in reaction to the findings. , Thesis (LLM) -- Faculty of Law , Public Law, 2021
- Full Text:
- Date Issued: 2021-12
The right to adequate housing and its effective implementation in South Africa
- Ntseto, Ntokozo https://orcid.org/0000-0001-5667-9436
- Authors: Ntseto, Ntokozo https://orcid.org/0000-0001-5667-9436
- Date: 2021-12
- Subjects: Right to housing -- South Africa , Housing policy -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28195 , vital:73814
- Description: As stated in article 25 of the Universal Declaration of Human Rights (UDHR), the right to access to adequate housing is one of the most fundamental human rights as it informs the right to a decent standard of living. In 1996, the Republic of South Africa adopted a Constitution which sought to secure the right to access adequate housing. Despite the constitutional protection of this right, a number of challenges remain within the South African context where there are a lot of inequalities and a skyrocketing population. Through desktop review and jurisprudential analysis, this study examined if the right to access to adequate housing is being implemented effectively. This was done by looking at the provision of housing during the apartheid era and post 1994 in the new Constitutional era, up to the year 2020. The study has examined the available legal and policy framework for housing, in light of international and regional standards, as well as the strategies and programmes that have been put in place to ensure that everyone has access to adequate housing, and how effective the programmes have been. Such programmes include Reconstruction Development Programme (RDP) housing, subsidy housing and other forms of housing that have been put in place in South Africa. There have been many milestones but there are still a lot of obstacles to overcome. Mass protests and cases brought before South African courts often demonstrate this. The South African government has done a commendable job, but much more needs to be done because the country's population is increasing rapidly. The study then recommends how the challenges can be addressed to promote effective implementation of the right to access adequate housing. This includes a programme where the unemployed youth will be equipped with skills to build and maintain RDP houses, a housing framework of allocating houses based on the number of people in each household and lastly, a system which prohibits fraud within the housing delivery system. , Thesis (MPhil) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Ntseto, Ntokozo https://orcid.org/0000-0001-5667-9436
- Date: 2021-12
- Subjects: Right to housing -- South Africa , Housing policy -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28195 , vital:73814
- Description: As stated in article 25 of the Universal Declaration of Human Rights (UDHR), the right to access to adequate housing is one of the most fundamental human rights as it informs the right to a decent standard of living. In 1996, the Republic of South Africa adopted a Constitution which sought to secure the right to access adequate housing. Despite the constitutional protection of this right, a number of challenges remain within the South African context where there are a lot of inequalities and a skyrocketing population. Through desktop review and jurisprudential analysis, this study examined if the right to access to adequate housing is being implemented effectively. This was done by looking at the provision of housing during the apartheid era and post 1994 in the new Constitutional era, up to the year 2020. The study has examined the available legal and policy framework for housing, in light of international and regional standards, as well as the strategies and programmes that have been put in place to ensure that everyone has access to adequate housing, and how effective the programmes have been. Such programmes include Reconstruction Development Programme (RDP) housing, subsidy housing and other forms of housing that have been put in place in South Africa. There have been many milestones but there are still a lot of obstacles to overcome. Mass protests and cases brought before South African courts often demonstrate this. The South African government has done a commendable job, but much more needs to be done because the country's population is increasing rapidly. The study then recommends how the challenges can be addressed to promote effective implementation of the right to access adequate housing. This includes a programme where the unemployed youth will be equipped with skills to build and maintain RDP houses, a housing framework of allocating houses based on the number of people in each household and lastly, a system which prohibits fraud within the housing delivery system. , Thesis (MPhil) -- Faculty of Law, 2021
- Full Text:
- Date Issued: 2021-12
The work In fishing Convention as an Instrument to combat forced labour on fishing vessels: A South African perspective
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12
- Authors: Hlazo,Nonhlanhla
- Date: 2021-12
- Subjects: Fishery law and legislation , Forced labor – South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10948/55877 , vital:54396
- Description: This thesis sets to analyse the provisions of the Work in Fishing Convention (WFC), No. 188 of 2007 and the South African Merchant Shipping Act 57 of 1951 (MSA). This analysis focuses on the regulation of the legal aspects of common practices that result in forced labour and provisions which serve as a deterrence to potential “threats of punishment” used to perpetuate forced labour on fishing vessels. The aim of this analysis is to determine whether South Africa complies with its duties in terms of the WFC. In the process of this analysis, this thesis aims to identify gaps in the MSA that allow for this appalling practice to continue and provide recommendations for amendments to the Merchant Shipping Bill (MSB) based on the identified discrepancies between the MSA and the WFC. Chapter one is an introductory chapter which explains that two elements must be present for a situation to amount to forced labour, namely “involuntariness” and the “threat of penalty.” Chapter two examines South Africa’ s jurisdiction to criminalise, investigate and try fisheries crimes on fishing vessels in different maritime zones. The aim of this examination is to determine whether South Africa has the jurisdiction to criminalise forced labour on fishing vessels in different maritime zones. It is concluded that, while South Africa’s enforcement and adjudicative jurisdiction may be limited in some maritime zones, South Africa has the jurisdiction to criminalise forced labour as a coastal State, flag State, personal State and a port State. Chapter three focuses on global and regional legal instruments to combat forced labour and establishes the significant role of the WFC in combatting forced labour on fishing vessels specifically. It is further concluded that, provided the provisions of the proposed MSB do not change, South Africa currently complies with its duties in accordance with the WFC and goes beyond what is required in some respects. However, South Africa does not comply with its obligation to regulate the recruitment and placement agencies for fishers. This leaves fishers in South Africa vulnerable to coercion by unscrupulous recruitment agencies. It is suggested that the provisions of the WFC relating to the recruitment and placement of fishers can be given effect in South Africa by either amending the current Seafarer Recruitment and Placement Regulations to apply to fishers or by drafting new Merchant Shipping (Fisher Recruitment and Placement) Regulations, which give effect to the WFC in line with the existing Seafarer Recruitment and Placement Regulations and promulgating them in terms of the MSA or its successor. , Thesis (LLD) -- Faculty of Law, School Public Law, 2021
- Full Text:
- Date Issued: 2021-12