Rationalisation of magisterial districts to transform the judiciary and widen access to justice under the RSA constitution of 1996
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
- Full Text:
- Authors: Skosana, Jacob
- Date: 2024-01
- Subjects: Justice, Administration of , Law and socialism , Human rights -- South Africa
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28162 , vital:72777
- Description: The study examines how pre-1994 magisterial districts jurisdictions denied access to justice to many South Africans, and ongoing efforts to reverse this injustice. Delayed rationalisation of the judiciary and reform of the courts territorial jurisdiction during the apartheid era exacerbated the problem. The courts administered justice along spatial racial divide, and given the location of the courts, many black communities had to commute long distances to access justice and at a great cost and inconvenience. The Constitution of South Africa of 1996 provides not only for the right to equality before the law and equal protection and benefit of the law but also the right to access the courts and seek recourse. In a period spanning eight years from December 2014, new magisterial districts were proclaimed in all the nine provinces of South Africa. Despite this milestone and the imperative of the 1996 Constitution, the rationalisation process is still in its infancy: old legislation and judicial structures remain intact; divisions of the High Court continue to exercise jurisdictions determined for the pre-1994 constitutional dispensation. The status quo continues to perpetuate the denial of access to justice to communities especially those living in areas that hitherto formed part of the former homelands and self-governing ‘states’. The study was conducted through a desktop survey of primary and secondary material relevant to the rationalisation process. It drew lessons from the re-demarcation of municipal boundaries which, like magisterial districts, were based on racial laws and policies of the past. It also contrasted rationalisation principles in comparable jurisdictions. The findings provide a useful contribution to the ongoing effort to effect rationalisation of the court system. They also contribute to knowledge and enriches our understanding of the relationship that underpins the administration of justice in a dispensation driven by democratic, human rights and constitutional ethos. , Thesis (PhD (LLD)) -- Faculty of Law, 2024
- Full Text:
Developing a regulatory framework for electronic commerce in the Southern African Development Community: the prospects and challenges
- Chimeri, Vongai https://orcid.org/0009-0007-2490-2497
- Authors: Chimeri, Vongai https://orcid.org/0009-0007-2490-2497
- Date: 2023-03
- Subjects: Electronic commerce -- Law and legislation , Electronic funds transfers -- Law and legislation , Electronic contracts
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28433 , vital:74326
- Description: The adoption of international instruments namely, the Model Law on Electronic Commerce, the Model Law on Electronic Signatures and the United Nations Convention on the use of Electronic Communications in International Contracts was mainly necessitated by the need to remove unnecessary obstacles to the development of e-commerce. However, many years later, countries in the Southern African Development Community (SADC) are grappling with the effective regulation of e-commerce. Globally, e-commerce has been embraced as an instrument for boosting economic growth to achieve various developmental goals including employment creation and poverty alleviation, among others. Given its significance and transnational nature, a comprehensive harmonised regulatory framework that enhances regulatory certainty remains a sine qua non to the development of e-commerce. This study examines the SADC’s regulatory approach to e-commerce and questions whether it has successfully harmonised e-commerce laws in a way that enhances legal certainty in e-commerce transactions. It observes that, notwithstanding the adoption of the SADC Model Law on Electronic Transactions and Ecommerce, the regulation of e-commerce in most SADC countries remains archaic, fragmented and unpredictable. In order to draw lessons for the development of an e-commerce regulatory framework that enhances legal certainty and predictability in e-commerce transactions, the study explores the regulatory approach to e-commerce of various Regional Economic Communities (REC) namely the Association of Southeast Asian Nations (ASEAN), the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the European Union (EU). In the end, the study proposes the development of a community law on e-commerce in SADC. It recommends some pertinent changes in the legal formulation and institutional framework of the SADC Treaty to ensure that the community law on e-commerce is adopted and implemented effectively by Member States. The study further advances that there is a need for SADC Member States to have the necessary political will and commitment to adopt and implement a community law on e-commerce. , Thesis (LLD) -- Faculty of Law, 2023
- Full Text:
- Authors: Chimeri, Vongai https://orcid.org/0009-0007-2490-2497
- Date: 2023-03
- Subjects: Electronic commerce -- Law and legislation , Electronic funds transfers -- Law and legislation , Electronic contracts
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/28433 , vital:74326
- Description: The adoption of international instruments namely, the Model Law on Electronic Commerce, the Model Law on Electronic Signatures and the United Nations Convention on the use of Electronic Communications in International Contracts was mainly necessitated by the need to remove unnecessary obstacles to the development of e-commerce. However, many years later, countries in the Southern African Development Community (SADC) are grappling with the effective regulation of e-commerce. Globally, e-commerce has been embraced as an instrument for boosting economic growth to achieve various developmental goals including employment creation and poverty alleviation, among others. Given its significance and transnational nature, a comprehensive harmonised regulatory framework that enhances regulatory certainty remains a sine qua non to the development of e-commerce. This study examines the SADC’s regulatory approach to e-commerce and questions whether it has successfully harmonised e-commerce laws in a way that enhances legal certainty in e-commerce transactions. It observes that, notwithstanding the adoption of the SADC Model Law on Electronic Transactions and Ecommerce, the regulation of e-commerce in most SADC countries remains archaic, fragmented and unpredictable. In order to draw lessons for the development of an e-commerce regulatory framework that enhances legal certainty and predictability in e-commerce transactions, the study explores the regulatory approach to e-commerce of various Regional Economic Communities (REC) namely the Association of Southeast Asian Nations (ASEAN), the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the European Union (EU). In the end, the study proposes the development of a community law on e-commerce in SADC. It recommends some pertinent changes in the legal formulation and institutional framework of the SADC Treaty to ensure that the community law on e-commerce is adopted and implemented effectively by Member States. The study further advances that there is a need for SADC Member States to have the necessary political will and commitment to adopt and implement a community law on e-commerce. , Thesis (LLD) -- Faculty of Law, 2023
- Full Text:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
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:
- 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:
Cynical evictions and the possessory action in search of an appropriate remedy
- Phillips, Jeremy Alan https://orcid.org/0000-0003-2046-0744
- 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
- Full Text:
- 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
- Full Text:
A critical analysis of the application of South African business rescue provisions on small to medium enterprises (SMEs)
- Peteni, Ushimin https://orcid.org/ 0000-0001-6478-9862
- 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
- Full Text:
- 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
- Full Text:
The adoption of the twin peaks model in the regulation of South African financial markets : a comparative analysis.
- Marange, Patience https://orcid.org/ 0000-0003-4405-2702
- 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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- 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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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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- 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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Civil protests and their impact on human rights in the Republic of South Africa
- Authors: Melvin, Kokwe Sonwabo
- Date: 2021-03
- Subjects: Protest movements -- South Africa , Human rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28184 , vital:73806
- Description: This mini dissertation investigates civil protests and their impact on human rights in the Republic of South Africa. South Africa is a democratic country that subscribes to representative democracy. Its civilians vote for political parties that elect members to represent them in parliament or in government. Civilians are not members of armed forces, such as police, soldiers, or fire fighters. These people are ordinary citizen with no power or authority to engage in war as they do not have arms or gear to do so. Whenever they feel aggrieved with situation or action by authorities (political leaders, government, or employers), they embark on protest to voice their grievances or disapproval. However, in the process of protest there have been developments of intimidation, vandalism, abuse, and violation of other people's rights. This happens even though the right to protest is enshrined to the Constitution of the Republic of South Africa. Section 17 of the constitution guarantees civilians the right to protest. It further stipulates the way in which protests should be conducted. The fact that protest is recognised as a right, means it plays an important role in assisting civilians expressing dissatisfaction with current situations and assert demands for social, political, and economic change. Additionally, the right to protest gives citizens right to participate in discourse. It is the individual and/or collective exercise of existing and universally recognised human rights that affords civilians opportunity to demand dignity, freedom of association and expression from authorities. Although this right is fundamental, it has its limitations, and its impact is crucial to human rights. This is so because every protest is human right inclined. Hence, this mini dissertation attempts to contribute to academic discourse by bringing forth human rights perspective on the impact of civil protest. The discourse has been majorly influenced by the following disciplines: sociology, social psychology, anthropology, political science, economics, and public administration. The existence of this study attempts to conscientize civilians about the importance of respecting, supporting, and protecting human rights. The study found that violent protests have negative impact on human rights. The negative impact is not only experienced by non-protesting civilians, but by protesting civilians. Because of the interdependency of rights, the study has also found that infringement of one right can lead to the violation of other rights. For instance, the burning of infrastructure such as clinic does not violate the right to access health only, but also violate the right to life, education, and security. Therefore, the study concludes that civilian's use of violence during protest action does not advance section 17 of the Constitution. Instead, it violates the same section or right. Moreover, negative impact of violent protests cost civilians dearly. Because after destroying property, the same civilians that destroy property are the ones who suffers. For instance, burning of police vehicles, makes it difficult for police to attend civilian's calls for help. Lastly, this mini dissertation concludes by recommending areas where government and civilians need to consider in respecting, supporting, and protecting human rights in a protest. , Thesis (MPhil) -- Faculty of Law, 2021
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- Authors: Melvin, Kokwe Sonwabo
- Date: 2021-03
- Subjects: Protest movements -- South Africa , Human rights -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10353/28184 , vital:73806
- Description: This mini dissertation investigates civil protests and their impact on human rights in the Republic of South Africa. South Africa is a democratic country that subscribes to representative democracy. Its civilians vote for political parties that elect members to represent them in parliament or in government. Civilians are not members of armed forces, such as police, soldiers, or fire fighters. These people are ordinary citizen with no power or authority to engage in war as they do not have arms or gear to do so. Whenever they feel aggrieved with situation or action by authorities (political leaders, government, or employers), they embark on protest to voice their grievances or disapproval. However, in the process of protest there have been developments of intimidation, vandalism, abuse, and violation of other people's rights. This happens even though the right to protest is enshrined to the Constitution of the Republic of South Africa. Section 17 of the constitution guarantees civilians the right to protest. It further stipulates the way in which protests should be conducted. The fact that protest is recognised as a right, means it plays an important role in assisting civilians expressing dissatisfaction with current situations and assert demands for social, political, and economic change. Additionally, the right to protest gives citizens right to participate in discourse. It is the individual and/or collective exercise of existing and universally recognised human rights that affords civilians opportunity to demand dignity, freedom of association and expression from authorities. Although this right is fundamental, it has its limitations, and its impact is crucial to human rights. This is so because every protest is human right inclined. Hence, this mini dissertation attempts to contribute to academic discourse by bringing forth human rights perspective on the impact of civil protest. The discourse has been majorly influenced by the following disciplines: sociology, social psychology, anthropology, political science, economics, and public administration. The existence of this study attempts to conscientize civilians about the importance of respecting, supporting, and protecting human rights. The study found that violent protests have negative impact on human rights. The negative impact is not only experienced by non-protesting civilians, but by protesting civilians. Because of the interdependency of rights, the study has also found that infringement of one right can lead to the violation of other rights. For instance, the burning of infrastructure such as clinic does not violate the right to access health only, but also violate the right to life, education, and security. Therefore, the study concludes that civilian's use of violence during protest action does not advance section 17 of the Constitution. Instead, it violates the same section or right. Moreover, negative impact of violent protests cost civilians dearly. Because after destroying property, the same civilians that destroy property are the ones who suffers. For instance, burning of police vehicles, makes it difficult for police to attend civilian's calls for help. Lastly, this mini dissertation concludes by recommending areas where government and civilians need to consider in respecting, supporting, and protecting human rights in a protest. , Thesis (MPhil) -- Faculty of Law, 2021
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Reinforcing the protection of stakeholders’ interests under the South African takeover regulation regime: a comparative assessment from a complementary regulatory perspective.
- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
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- Authors: Mudzamiri, Justice
- Date: 2021-02
- Subjects: Social responsibility of business , Stockholder wealth , Corporate governance--Law and legislation
- Language: English
- Type: Doctoral theses , text
- Identifier: http://hdl.handle.net/10353/20350 , vital:45658
- Description: The dominant view in company law (especially; corporate governance and finance law) is that the regulation of company takeovers (takeovers) and-/ or mergers must carefully balance two opposing notions. On one hand, the regime must be designed to enable or facilitate the initiation and successful implementation of takeovers and mergers in the interests of inter alia economic growth and technological advancement. On the other hand, such a regulatory framework ought to be sensitive to stakeholders’ interests. Various policy rationales are put forward in supporting the incidence of takeover transactions. These motivations include the need for companies to access business synergy, diversification, competitiveness, technological advancement, and broader economic development. However, takeovers may have negative implications for stakeholders. For feasibility sake, this study’s focus is limited to three stakeholder groups, namely, the target company shareholders, the target company directors, and the local communities. For the target shareholders, the takeover-related mischiefs include the possibility that the target directors may be tainted by conflicts of interest in the context of an offer, thereby making recommendations that disadvantage the shareholders. Or the possibility that the minority shareholders may be treated unfairly and unequally by the acquiring company through making a subsequent offer that is inferior to the one received by the majority holders of securities of the same class. For the board of directors, there are twin negative effects that the directors may face. On the one hand, is litigation from disgruntled stakeholders during and after takeovers and, on the other hand, is the possibility that directors often lose their offices and jobs after successful takeovers. This study also examines the possible exposure of local communities to the negative repercussions of takeovers, and these include loss of employment by locals, loss of beneficial community development, loss of community development monies due to losses in corporate taxes, loss of corporate social responsibility benefits where the merged company decides to relocate. Still, the introduction of a new company into a community after a takeover may negatively impact the environment, public health as well as expose the community to severe national security threats especially where the takeovers involve personal data storage, the internet and technology. Against the backdrop of the conceivable benefits and adverse effects surrounding takeovers this study introduces a ‘novel’ complementary regulatory perspective, as a yardstick for undertaking a comparative evaluation of the existing takeover regulation regimes of the United States of America (US) especially the state of Delaware, the United Kingdom (UK) and South Africa to answer this study’s main research question. The primary question sought to be answered is: To what extent are the provisions of the South African takeover regulation framework appropriate and adequate in protecting the stakeholders’ interests? The said complementary regulatory perspective has twin-legs designed to carefully balance two opposing philosophies: that is, on one hand, vigilant optimisation of takeover activity and on the other hand, ensuring the appropriate and adequate protection of stakeholders’ interests by pursuing stakeholder inclusivity through the concept of subordination. Notably, there are several protections under the US, the UK and South African takeover regulation regimes that are available and accessible to the three stakeholder groups identified, discussed and evaluated in this study. And through the evaluations, the related merits and weaknesses of such protections were established. Then, ultimately, several suggestions for law reform are recommended in accordance with the ethos of the complementary regulatory perspective as deliberated. , Thesis (PhD) (Law)-- University of Fort Hare, 2021
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Child marriage as a hindrance to the realisation of child rights in Zimbabwe: consolidated approaches towards eradication
- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
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- Authors: Ndhlovu, Ntandokayise
- Date: 2020
- Subjects: Teenage marriage Children's rights
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18359 , vital:42256
- Description: Child marriage is defined as any marriage where one of the spouses is younger than 18 years old. A number of deep, complex, interrelated and interlinked factors are responsible for the practice in Zimbabwe and elsewhere. These include the weak enforcement of existing laws, legal contradictions, slow alignment of laws to the Constitution and international child rights, entrenched harmful religious and cultural practices, and acute poverty. It was at the fulcrum of this dissertation thus to examine the unfair limitations caused by child marriage, on the realisation and enjoyment of child rights in Zimbabwe. The United Nations International Children’s Emergency Fund reported an estimated 31 percent prevalence of the scourge in the country. These percentages translate to millions of children, and the numbers could be on the rise. Child marriage has intense consequences for the realisation and enjoyment of rights by many children in Zimbabwe. Of note, child marriage ends childhoods. It impairs the children’s right to education, minimises their economic opportunities and fair chances in life, and increases their vulnerability to domestic violence, marital rape and sexually transmitted diseases. The grave ramifications of child marriage, in terms of the realisation of child rights have led to a number of international, regional and national efforts to curb this scourge. However, owing to an array of multifaceted and complex causes, the practice remains highly prevalent in Zimbabwe. After decades of side-lining, child rights in Zimbabwe, have finally gained constitutional protection under the 2013 Constitution. While the comprehensive protection of child rights as justiciable rights is an acceptable standard, a plethora of practices such as child marriage are a practical and real threat to the realisation of these rights. Therefore, it is incumbent upon Zimbabwe to ensure that child rights as stipulated in the Constitution are respected, promoted, protected and fulfilled. The elimination of child marriage is a daunting yet possible task. Through desktop based qualitative research, this dissertation ascertained the main drivers of the practice in the country, and its impact on the realisation of fundamental child rights in Zimbabwe. The study further explored the contribution, as well as the insufficiencies of International and African Human Rights systems, to the protection of children from child marriage. It also assesses the prospects and challenges of the existing domestic (legislative and constitutional norms) in protecting child rights in the Southern African country. The impetus behind this iii examination is to recommend a comprehensive and holistic effort to curb child marriage and suggest a consolidated legal and non-legal approach to end it
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Derivative actions in contemporary company law: A comparative assessment from an enhanced accountability perspective
- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
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- Authors: Hamadziripi , Friedrich
- Date: 2020
- Subjects: Judicial discretion
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/18336 , vital:42253
- Description: The company is one of the most popular organisational vehicles for conducting business. The very nature of the company as a juristic person is attractive. The principle of legal personality entitles a company to act as a legal entity separate from its members. The principle was laid down in the landmark decision of Salomon v Salomon 1897 AC 22 (HL). This decision shows that a company is a full player in the legal arena. It has standing before the courts of law and is the proper plaintiff for wrongs done to it, not any of the stakeholders who may also be affected by the wrongdoing. However, it has to be noted that a company is just an artificial person. It is a fictitious being, a juristic person and a creature of statute. Therefore, even though a company has the capacity to acquire rights which can be enforced in a court of law and obligations which another legal subject can enforce against it, a company cannot in all respects be equated with a human person, for it has no physical substance. Inevitably, a director must act as its hands, brain, legs, mouth and eyes. Regardless of how financially strong a company can be, its juristic nature places all its resources and wealth at the mercy of its directors and officers. A company can neither protect itself against wrongdoing, vindicate nor enforce its rights without its representative directors and officers. If the wrongdoing faction in a company comprises of directors who are required to act in the best interests of the company, then who will enforce the company’s rights? The juristic nature of a company makes it vulnerable to abuse, especially by directors. It is important to note that internal stakeholders such as directors innocent of wrongdoing, employees and shareholders are not the only ones who stand to lose from the failure of corporate governance. External stakeholders’ interests too are vulnerable to abuse as a result of a company being abused by its leaders. There is, therefore, a need for a mechanism that controls abuse of power especially by agents of a company. Such a mechanism is critical to accountability as it protects the company from director malfeasance while promoting adherence to corporate governance principles in general. Also, successful derivative claims play a significant role in securing compensation for the company. Seeing that a company can be injured by both internal and external stakeholders, it is imperative that there be an effective and efficient mechanism that protects both the company and its owners without deterring entrepreneurship and stakeholder participation. Proceeding from an iii accountability enhancement perspective, this study undertakes a comparative assessment of the derivative action as a mechanism that created to deal effectively with the mischief revealed in the above paragraphs. For a complainant to be able to invoke the derivative action for relief, he or she must comply with certain requirements. Those requirements will be examined in greater detail with respect to the American, South African, English and Japanese laws. Empirical research has concluded that directors’ exposure to derivative claims remains largely theoretical. The critical question is whether the requirements for commencing or continuing a derivative action are too onerous. Although the remedy is available in theory, its shortcomings appear to make derivative actions almost impossible to invoke in practice. It has been argued that the greatest impediment to a derivative action by minority shareholders arises from the practical barriers to the commencement of derivative proceedings. With respect to the USA, it has further been demonstrated that there is a positive correlation between the significant decline in the importance of derivative litigation and the creation of additional legal hurdles in breach of directors’ duties cases. This study seeks to examine the various shortcomings of the remedy and suggest ways to make it less onerous as well as increase its availability to more stakeholders
- Full Text: