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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

  • 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
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  • 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
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  • Date Issued: 2022-02

Standards for the admission of forensic scientific evidence in criminal trials through an expert: Lessons and guidelines for South Africa

  • 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
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  • 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
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  • Date Issued: 2021-12

Marine Plastic Pollution

  • 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
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  • Date Issued: 2021-12

The right to adequate housing and its effective implementation in South Africa

  • 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
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  • 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
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  • Date Issued: 2021-12

Cynical evictions and the possessory action in search of an appropriate remedy

  • Authors: Phillips, Jeremy Alan https://orcid.org/0000-0003-2046-0744
  • Date: 2021-11
  • Subjects: Eviction
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/22434 , vital:52285
  • Description: A cynical eviction is an unlawful eviction where, in the course of the eviction, the evictee's home is destroyed. They are a notorious brand of eviction which has darkly coloured South Africa's history and social geography. And they persist still to this day. The cynicality of a cynical eviction lies in the fact that because the home, and its composite materials, are destroyed, application of the mandament van spolie is precluded. With the obvious remedy barred, there is academic and judicial disagreement about which remedy should be used instead. Some have argued that, despite the technical difficulties, the mandament van spolie should be relied on, while others insist that the extraordinary constitutional remedy, crafted in the Tswelopele case, is the best option. This dissertation argues that there are obvious shortcomings with both two remedies, and investigates whether a third remedy, the possessory action, might be better-suited. It finds that, while the possessory action has many benefits, it too is deficient in some respects. It ultimately concludes that all three remedies are only, at best, partially appropriate for addressing cynical evictions and that whichever remedy is the most appropriate in the instant cynical eviction should be preferred for that particular case. , Thesis (LLM) -- Faculty of Law, 2021
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  • Date Issued: 2021-11

A critical analysis of the application of South African business rescue provisions on small to medium enterprises (SMEs)

  • Authors: Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
  • Date: 2021-09
  • Subjects: Small business , Business enterprises , Business failures--Law and legislation
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/20328 , vital:45655
  • Description: Small to Medium sized Enterprises (SMEs) play an essential role and can be described as the crucial bread and butter of the South African economy. They have the potential to create employment and skills development opportunities pertinent for sustainable economic growth. The unfortunate part is that South African Small to Medium sized Enterprises have the lowest survival rates in the world, resulting in high rates of business failure and job losses. This is because the South African economy does not favour SMEs, which are often burdened with structural hurdles including access to funding, lack of access to markets, inadequate skills, uncompetitive regulatory frameworks and technological disruptions. A developing economy such as South Africa cannot grow if companies facing financial difficulty are constantly liquidated. This is because the liquidation system does not offer companies an opportunity to restructure and possibly function within the context of raised concerns. In order to facilitate sustainable SMEs growth, the legislature has come up with statutory mechanisms to support SMEs and save them from total liquidation. Most recently, the Companies Act 71 of 2008 Chapter 6 introduces a business rescue mechanism applicable to all business structures established under the Act. The purpose of business rescue is to provide companies in financial distress with opportunities to reorganise, strategize and come up with useful corporate reorganisation measures which are useful and efficient in saving the financially distressed company and possibly yielding a better return for the creditors than would have been the case if the company was liquidated. This new enactment is seen as both an improvement and necessary reform from its predecessor, judicial administration which has widely been condemned as a failure. However, despite this improvement, the application of the current business provisions to SMEs is questionable. Although Chapter 6 of the Act makes provision for SMEs, it also presents a number of stumbling blocks, including the fact that services of business rescue practitioners are out of reach for most SMEs in South Africa. The purpose of this study is to consider challenges faced by SMEs in the practical application of the current business rescue provisions. This study further emphasizes the importance of South African SMEs, whilst looking at their challenges and how the Companies Act 71 of 2008 provisions, regarding business rescue, assists SMEs. The study looks at the impediments of certain provisions of business rescue and proposes recommendations. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
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  • Date Issued: 2021-09

The adoption of the twin peaks model in the regulation of South African financial markets : a comparative analysis.

  • Authors: Marange, Patience https://orcid.org/ 0000-0003-4405-2702
  • Date: 2021-09
  • Subjects: Financial services industry , Financial services industry--Law and legislation
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/21278 , vital:48175
  • Description: Over two decades ago, a number of countries have changed their financial regulatory models. The growing complexity of financial products, the increasing challenge of regulating large financial conglomerates, and the repercussions of the 2008 Global Financial Crisis, amongst other factors, have made regulatory reform a key priority for many economies. A move towards the Twin Peaks model of financial regulation has been one of the trends in recent years. This model sees regulation split into two broad functions which are market conduct regulation and prudential regulation. South Africa adopted the Twin Peaks financial regulatory model in 2017 as a way of strengthening its financial regulatory model. By adopting the Twin Peaks model, South Africa has become the eighth and the first developing country to adopt the financial regulatory model. The adoption of the Twin Peaks financial regulatory model in South Africa was mainly inspired by the effects of the 2008 Global Financial Crisis. This study undertakes a comparison of the Twin Peaks model structure in South Africa with the structure of its counterparts, which are Australia, United Kingdom and the Netherlands. In doing so, the study identifies the strengths and possible weaknesses of the model in South Africa. The study discusses the extent to which the South African Twin Peaks model reflects international experience. The study traces the evolution of the financial markets and its regulation. It also delves into the main models of the regulation of financial services industry including the Twin Peaks model, which is the focus of the study. The rationale of South Africa’s adoption of the Twin Peaks model is also considered. The Twin Peaks model was introduced in South Africa through the enactment of the Financial Sector Regulatory Act. This legislation reveals that South Africa has drawn increasingly on international experience, particularly the structural design and the cooperation and collaboration of the regulators. It also reveals similarities, notable differences as well as characteristics that might be regarded as unique to South Africa. The similarities reveal that the South African Twin Peaks greatly aligns with that of its counterparts. This is exemplified through the cooperation and coordination between the regulators and the relationship between the regulators and the government amongst others. The study explores insights and lessons to South Africa which can be learnt from its counterparts like the need for effective coordination amongst the Twin Peak regulators. Thereafter, the study puts forward recommendations for reform, which can enable the effective implementation of the Twin Peaks financial regulatory architecture. , Thesis (MA) (Laws) -- University of Fort Hare, 2021
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  • Date Issued: 2021-09

The obligation of unmarried biological parents to provide financial support for their children: a contemporary assessment from a children’s rights perspective

  • Authors: Obi, Lauretta
  • Date: 2021-07
  • Subjects: Children's rights , Support (Domestic relations)
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10353/22445 , vital:52322
  • Description: In South Africa, the compelling task of unmarried biological parents to provide financial support (in the form of paying monthly maintenance) to their children, as a matter of children’s rights, is intended to ensure the children’s economic and psychological well-being both in the present and future. This study seeks, within the private judicial system and socio-economic context, to explore the nature of children’s rights as they pertain to parental financial support and, the responsibilities of unmarried parents to provide financial support for their biological children until they become self-supporting. This is significant as many unmarried parents usually downplay their responsibilities towards ensuring the well-being of their minor children. Section 28 of the South African Constitution of 1996 enshrines it as a duty of parents to fulfil this aspect of their children’s fundamental rights and our courts apply these rules to the letter. The task of providing support to children basically rests with their birth parents as the primary care givers, and in the absence of these parents or, due to their inability, this legal obligation falls on the state. , Thesis (LLM) -- Faculty of Law, 2021
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  • Date Issued: 2021-07

Giving effect to the rights of remand detainees

  • Authors: Africa, Nicole Kristy
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Prisoners--Civil rights
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51205 , vital:43216
  • Description: Remand detainees make up a considerable amount of the total prison population in South Africa’s correctional system. Inmates are considered a vulnerable group in our society and the majority have suffered unfavourable life circumstances. Correctional centres are not open establishments and the public is not always aware of the human rights violations that occur in these establishments. The crime rate in South Africa is high and effective means must be taken to ensure the safety of its citizens. Time spent on remand is not viewed as punishment, however it is often met with appalling conditions including severe overcrowding, violence, gangsterism, drug usage, illness, the spread of disease and inadequate infrastructure and resources. This is the reality despite South Africa having one of the most progressive Bill of Rights in the world which guarantees human rights and in addition having a comprehensive Correctional Services legislative framework. Remand detainees are entitled to all rights and protections save for those legally restricted for the purpose of their detention. The court process to determine guilt or innocence is riddled with delays and clogged court rolls which sees matters taking a long time to finalise with time spent on remand regarded as dead time with no opportunities for productive activity. The Canadian position regarding remand detainees was investigated and many similarities were detected with the conditions experienced on remand detention in South Africa. It was found that these challenges are a global issue. This study investigates methods for improvement to the South African remand detainee landscape and highlights reforms that can be undertaken to make South Africa a leader in this arena. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

National minimum wage : a comparative study between Germany and South Africa

  • Authors: Tshete, Vusumzi Victor
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Minimum wage--Law and legislation
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51183 , vital:43227
  • Description: This comparative research study attempted to provide the comparative analysis between the Germany’s MiLoG and the South African NMWA. The study has adopted the ILO definition of the Minimum Wage as the minimum amount of remuneration that an employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by a collective agreement or an individual contract The Desk review was an appropriate data collection method for the present research studies. Desk research refers to secondary data that was collected without fieldwork. This included reviewal of libraries and the internet, that includes Journals; newspapers; clippings; reports; government statistics; dictionaries; books, On-line databases, Internet sources, legislations and case laws. The multiple research questions that will be addressed by the study question involve the regulation of the implementation of the NMW, the effectiveness and efficiency of the implementation of the NMW between South Africa and Germany, the impact of the NMW in addressing inequality, poverty and unemployment or socio-economic challenges, as well the overall role of the NMW in the entire labour between the two countries. The present study conducted a literature review on the historical development of the Minimum Wage in South Africa and Germany, the legislative framework around the Minimum Wage in both countries. The literature review also covered the impact of NMW on poverty alleviation and Wage inequalities. The literature further covered, the differences between the implementation of the MiLoG in the case of Germany and the NMWA in the case of South Africa. The literature also covered adjusting amendment and monitoring compliance including the best practices. The findings of the study is that the overarching purpose of introducing a NMW had multi- faceted purpose function such as of transforming the country’s inordinately unequal wage structure while at the same time redressing the inherent poverty, inequalities and transformation of the unequal wage structures both in South Africa and Germany. The Minimum Wage is implemented to prevent workers from earning very low wages. In both 3 countries the Minimum Wage is backed by the legislative framework. Processes to measure and enforce compliance are prevalent in both countries; however, the study found that it is very sophisticated to estimate the exact extent of non-compliance. The study further revealed that the effectiveness of Minimum Wages was seen to depend entirely on their policy design, implementation, and adoption as well as compliance measures. The success of the Minimum Wage solely depend on the compliance rate by employers, hence the study recommends that the New Minimum Wage legislation needs to ensure higher rates of compliance. The effective Minimum Wage should put measures in place to ensure that the compliance enforcement measures are practically implemented. A room still exists for both countries to mitigate wage inequalities that will benefit mostly the vulnerable employees. The study revealed that the NMW Commission needs to be capacitated with resources. A need of recruiting highly qualified inspectors was identified in order to strengthen the process of monitoring and ensuring compliance. The study further revealed that the appropriate Minimum Wage needs a collaborative participation of all stakeholders such as employers, the state, employees, trade unions, employer’s organization, bargaining councils, the member of public in order to achieve its professed mandate. , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
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  • Date Issued: 2021-04

Presidential accountability for cabinet appointments in South Africa

  • Authors: Phorego, Molefhi Solomon
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Executive power--South Africa
  • Language: English
  • Type: Doctoral theses , text
  • Identifier: http://hdl.handle.net/10948/51212 , vital:43228
  • Description: The President’s power to appoint cabinet members in South Africa constitutes an essential part of the country’s constitutional framework. It is a discretionary power exercised by the President in his capacity as Head of State bestowed on him by the Constitution, which underpins cabinet appointments.The underlying debates in relation to the President’s power to make cabinet appointments lie between justiciability and non-justiciability. In this respect, there are two schools of thought regarding the question whether the exercise of such a power may be the subject of a judicial inquiry, and if so, to what extent. This thesis provides insight into the nature and origin of the President’s power to appoint cabinet members. It also delves deeply into issues raised by the doctrine of separation of powers surrounding the exercise of this power. The core focus of the thesis is on the extent to which the President can be held accountable for making cabinet appointments. The main argument advanced is that because South Africa is a country founded on the principles of constitutional supremacy and the rule of law, every exercise of public power should be subject to the Constitution, including the President’s power to appoint cabinet members. The determination of whether public power is in line with the dictates of the Constitution calls for an independent judiciary, with the power to rule on any aspect of societal disputes. In pursuit of the above, the thesis analyses the constitutional provisions and case law relevant to the President’s powers as Head of State. The research highlights, amongst others, the President’s duty to give reasons for cabinet appointments. On this point it is submitted that the President does have the constitutional obligation to give reasons for cabinet appointments. Comparisons with other jurisdictions on cabinet appointment processes and oversight mechanisms regarding the exercise of that power form the backdrop against which recommendations are made in the thesis. Proposals are advanced for increased legislative oversight in cabinet appointments. Such oversight should focus on inter alia, the President’s duty to furnish reasons for cabinet appointments. The thesis also proposes a constitutional framework in terms of which Parliament plays a role in the selection of appointees to cabinet. The rationale behind this recommendation is the minimising of instances in which the judiciary is accused of overreaching on the powers of the political organs of government. The courts should, however, still retain the power to pronounce whether both the President and Parliament have fulfilled their relevant constitutional obligations in relation to the process of cabinet appointments. , Thesis (PhD) -- Faculty of Law, Public Law, 2021
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  • Date Issued: 2021-04

Prospect of an adquisitorial criminal justice system

  • Authors: Mpofu, Mputumi
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Bail--South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51186 , vital:43231
  • Description: Bail does not cease to be a mind boggling issue as it is challenging our courts on daily basis, hence the need for this research. The tendency of confusing on the role of presiding officers in our legal fraternity is so far as bail proceedings is concerned is growing by the day. The seems to be a tug of war between prosecutors and attorneys with regard to granting of bail for the arrested persons, which leads to judicial officers having to sit for bail applications. Some of these challenges are as a result of interpretation of legislation that governs the issue of bail which is primarily peremptory in nature. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

Review of the rehabilitation and integration of offenders

  • Authors: Darries, Share-Leigh
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Criminals--Rehabilitation--South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51199 , vital:43219
  • Description: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones – and South Africa treated its imprisoned African citizens like animals”.1 The constitutional mandate to ensure the successful rehabilitation and reintegration of offenders into society, upon eventual release falls on the South African Department of Correctional Services (DCS).2 In terms of this mandate, the Department is encumbered with the responsibility to develop programmes which not only addresses criminal conduct but results in the eventual drop of recidivism rates.3 Notwithstanding the Department’s inordinate efforts to discharge its constitutional mandate, recidivism rates continue to be on the rise.4 Built to digress from innate retributive traditions and the concept of punishment, the Department of Correctional Services proffered to alter our realities through the creation of an environment which essentially births different behaviours.5 A task rendered unattainable, as inordinate efforts become frustrated by the realities of prisons and the myth of rehabilitation. Despite having one of the most progressive criminal justice systems in the world, obstinate challenges in South African prisons and an overwhelming prison population make managing and translating its policies into practice all the more difficult.6 With high crime and recidivism rates inundating an already saturated criminal justice 1 Mandela Long Walk to Freedom: The Autobiography of Nelson Mandela (1994) 174-175. 2 Murhula and Singh “A Critical Analysis on Offenders Rehabilitation Approach in South Africa: A Review of the Literature” 2019 12 African Journal of Criminology and Justice Studies 21 21. 3 Ibid. 4 Ibid. 5 Department of Correctional Services “White Paper on Corrections in South Africa” (November 2004) (Republic of South Africa, Minister of Correctional Services)” http://wwww.dcs.gov.za/wpcontent/uploads/2016/08/WHITE-PAPER-8.pdf (accessed 2019-05-6) 5; Wainio “Inside the World’s Toughest Prisons season 3 premiere recap: Costa Rica: Prison on a Knife-Edge” https://www.google.co.za/amp/s/showsnob.com/2018/12/24/inside-the-worlds-toughest-prisonsseason-3-premiere/amp (accessed 2019-05-6). 6 McAree “Prisoner Rehabilitation in South Africa: A case study of Phoenix Zululand’s work in Eshowe Correctional Facilities” 2011 School for International Training 7. ix system, and exposure of minor offenders to hardened criminals become all the more common,7 the vision of translating every offender who walks through the prison gate into corrigible and law-abiding citizens8 become a far-kept dream. Instead, South African prisons become nothing but breeding grounds of criminality, 9 and temporary vessels of human right violations, as an inmates try to come to terms with the fact that their eventual release into society is met with ostracization, destabilized community relations and collateral consequences.10 Since offenders are usually detained for long periods on remand, prisons are innately prevented from becoming correctional centers despite this being a stated aim in the White Paper on Corrections.11 Against this backdrop, the researcher proffers to broaden the perpetual desire to construct a transformed and developed system; one which charts a course from innate retributive traditions to one which births rehabilitated offenders into society. Mindful of the obstinate penal system which undeniably perpetuates colonial structures through dichotomization, this treatise offers an altered reality, a system which respects and promotes the values and rights enshrined in the Constitution of the Republic of South Africa.12 , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

The application of the doctrine of common purpose to the joint possession of firearms

  • Authors: Mnono, Zimbini
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Firearms--Law and legislation
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51197 , vital:43225
  • Description: According to the South African criminal justice system, where two or more people in a joint unlawful enterprise associate to commit a crime with only one participant carrying a firearm, the principles of joint possession are used to secure successful prosecution of the participants for joint possession of the firearm. However, up to date, the State is yet to see a conviction based on the application of these principles. S v Khambule marks the first case in which the doctrine of common purpose was used to secure a conviction of multiple accused for the crime of joint possession of firearms. The case has become outdated law following the Supreme Court of Appeal decision in S v Mbuli where the court found that the doctrine could not be applied to circumstance crimes such as joint possession of firearms. Both cases have received enormous criticism from academics and in subsequent judgments. One main criticism relates to whether the failure to apply the doctrine of common purpose is consistent with the current law and constitutional freedoms, such as the right to be free from all forms of violence and the right to equal benefit of the law. The purpose of the dissertation is to evaluate the jurisprudence on the application of the doctrine of common purpose to the joint possession of firearms. The evaluation includes an analysis of the principles of joint possession in the context of constitutional rights as well as contributions made by academics such as Burchell. The commonpurpose doctrine does not extend to joint possession of firearms. This is as a result of firstly, the absence of causation from the definitional elements of the crime; secondly, the mental aspect of possession; thirdly, the principles of joint possession as the basis of liability for joint possession of firearms; and lastly due to the nature of the crime of joint possession of firearms, being a circumstance crime. The paper recommends the extension of the doctrine of common purpose to joint possession of firearms. The recommendation is based on the following arguments. Firstly, the mental aspect of possession relates to the description of the article and not fault. Secondly, the doctrine is and has always been intended to criminalise joint wrongdoings. Thirdly, the extension of the doctrine of common purpose to joint possession of firearms is consistent with the presumption of possession in terms of the Firearm Controls Act. Lastly, the expansion enhances constitutional rights and fulfils the duty of the State to make South Africa less vulnerable to firearms. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

The application of the prevention and combating of corrupt activities act

  • Authors: Landman, Johan Abraham
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Corrupt practices--South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51201 , vital:43223
  • Description: The study will address the application of the Prevention and Combatting of Corrupt Activities Act (PCCAA) and the various offences that is created by PCCAA and how the coutls apply PCCAA in corruption cases. This study will compare the crimes that was created under the repealed Corruption Act with the crimes created under PCCAA, lt will further show how the courls interpreted the application of PCCAA. The infamous case of former police commissioner, Jacki Selebi will be discussed and how the Supreme coutl of Appeal applied section 4 of PCCAA. lt will furlher explore why section 5 of PCCAA needs amendment to be able to prosecute foreign public officials under PCCAA. The PCCAA Amendment Bill is currently before parliament to amend section 5 of PCCAA. This study will further explore how corruption is dealt considering hospitality and gifts. This must be the most unnoticed form of bribery that occurs which PCCAA does not specifically clearly addresses. This will shorlly be compared to the German Penal Code. All legislation has strengths and weaknesses, including PCCAA. This study will explore those strengths and weaknesses and how they can be solved. lt will explore loopholes within PCCAA and the strategy of 'unbundling' corruption and its effects. lt has been stressed by the courts that corruption is a very serious crime and therefore the reporting thereof is impoftant. This study will discuss the reporling of corruption in terms of section 34 of PCCAA. This study will fufther show through South African case law that the courls are too lenient when sentencing individuals guilty of corruption and that the minimum sentence needs to be the starting point for sentencing offenders. The courts should not have discretion to deviate from this minimum sentence given how serious the courls express corruption to be and the devastating effects it has. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

The combating of gang activities in terms of the Prevention of Organised Crime Act 121 of 1998

  • Authors: Lande,Sonwabise
  • Date: 2021-04
  • Subjects: Crime Prevention- South Africa , Law-- South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/55175 , vital:49580
  • Description: This treatise discuses, the effectiveness of the Prevention of Organised Crime Act (POCA), specifically, Chapter Four of the Act. POCA was enacted for the purposes of tackling, inter alia, the threat posed by money laundering, racketeering and criminal gang activities. Moreover, POCA was enacted to supplement the common law, specifically the doctrines of common purpose, conspiracy, public violence as well as incitement. In this respect, the legislative framework in line with POCA- aimed at addressing money laundering and racketeering have contributed significantly in addressing such crimes. However, the same cannot be said about its effect on dealing with criminal gang activities. The criticisms which have been raised for the increase of criminal gang activities are that the sentences provided for in Chapter Four of POCA are viewed as inadequate in terms of deterrence because they are too lenient. The sentences do not hold gang leaders accountable but rather focus on foot soldiers. Likewise, POCA is similar to and does not expand the common law. This treatise aims to demystify the issues relating to criminal gang activities in South Africa. It investigates the extent to which Chapter Four of POCA adds significant value to the common law in respect of criminalising criminal gang related activities. It concludes and make recommendations on how criminal gang activities can be tackled while upholding South Africa’s constitutional values.bstract text. , Thesis (LLM) -- Faculty of Law, Criminal and Procedural Law, 2021
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  • Date Issued: 2021-04

The concurrent jurisdiction of the high court and labour court

  • Authors: Beyleveld, Dominique
  • Date: 2021-04
  • Subjects: Gqeberha (South Africa) , Eastern Cape (South Africa) , Labor laws and legislation--South Africa
  • Language: English
  • Type: Master's theses , text
  • Identifier: http://hdl.handle.net/10948/51191 , vital:43218
  • Description: The words “concurrent jurisdiction” essentially means that there is more than one court which has the power to hear a matter and therefore, a party may choose which forum to approach.1 The High Court (hereinafter referred to as “HC”) may exercise jurisdiction, together with the Labour Court (hereinafter referred to as “LC”), in enforcing purely contractual and other common law claims as well as for breach of fundamental rights to which the Labour Relations Act (LRA)2 (or other labour statutes) do not give effect to.3 However, this is not without limitations. The HC and the LC have concurrent jurisdiction over claims relating to the lawfulness of dismissal or other conduct by the parties, whereas all claims based on fairness falls within the exclusive jurisdiction of the LC.4 The practical implication of the approach taken by the Constitutional Court (hereinafter referred to as “CC”)5 is that jurisdiction may, to a certain extent,6 be based on the pleadings, and a litigant may in fact have simultaneous claims arising from the same circumstances.7 However, where the basis of the action and the relief sought is clearly identifiable as being part of the machinery of the Labour Relations Act (hereinafter referred to as the “LRA”) or other labour legislation, then the HC will not have jurisdiction and it is up to the LC to remedy the wrong and give effect to the primary objects of the LRA , Thesis (LLM) -- Faculty of Law, Mercantile Law, 2021
  • Full Text: false
  • Date Issued: 2021-04
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