School of Law

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An analytical study of the regulation of South African diamond trade from 1994 to 2009 with reference to aspects of the 1996 Constitution.
(2009) Ndlovu, Fikile Portia.; Mneney, Edith.
This study forms a unique study of South African diamond laws as developed in the context of the South African constitutional dispensation. This study is therefore a contribution to legal research and academia which forms an in depth consideration of international trade practices that influence the diamond industry which is used in this study specifically as a sample market. The diamond industry in South Africa provides a relatively comparatively small but resilient source of economic activity through trade in diamond products as luxury items and items used for industrial purposes. It is therefore crucial that laws related to the regulation of this industry are comprehensively and analytically studied for the purposes of understanding South African national and international diamond trade regulatory framework. This is done with the aim of illustrating that there has been a significant shift of prevailing wisdom in the South African diamond trade industry. It is now evident that more constitutionally justifiable and internationally sound diamond trade practices have been adopted and applied. This study not only serves to benefit South Africa as a diamond producing country but it will also add required knowledge related to the international trade context particularly having regard to the fact that South Africa plays a significant role in the global economy and its diamond trading activities do not occur in a vacuum. Therefore the international trade aspect of this study lends it a dual purpose analysis of diamond regulation laws. 1 Report of Task Team Appointed by the Minister of Minerals & Energy to Analyze the Memoranda and Evidence Laid Before The Commission of Inquiry into the South African Diamond Industry, 20 December (1999). Chapter 5. This was stated in the submissions by Mr. L.A. Lincon, a director of De Beers. He stated that South Africa had 10% by volume of the world total of around 105 million carats. South African mines are no longer major producers of all desired qualities. As a result it was agreed in 1992 that rough diamonds destined for South African factories could be provided from the CSO’s (Central Selling Organization) full range of diamonds available in London from sources world-wide.
An overview of the legal instruments to conserve biodiversity in South Africa with particular reference to the establishment and expansion of protected areas
(2005) Blackmore, Andrew Craig.
In this investigation, a review is undertaken of the newly promulgated and existent legislation pertaining to the conservation of biodiversity, and the establishment of protected areas as the primary means to protect representative samples thereof. This review develops understanding of the various types of protected areas which may be used, in a broad sense, to conserve the country's biodiversity, with special reference being made to the recently promulgated Protected Areas Act. In undertaking this, a detailed discussion of biodiversity, trusteeship and the concept of systematic planning and irreplaceability is generated. Cursory comment and discussion in a socio-political context, in particular regarding land reform, as well as the various international obligations and commitments the country has undertaken, is made. Despite South Africa being the third most biologically diverse country globally, it is concluded that the conservation of its biodiversity has had a troubled and undirected history. The establishment of protected areas, as a result, has been ad hoc and potentially ineffective at a national scale. The source of this observation is linked directly to the absence of a structured and co-ordinated framework that supports the fulfilment of the country's international commitments to conserve biodiversity. The promulgation of the Biodiversity Act and subsequently the Protected Areas Act, has brought into playa significant step forward in developing this co-ordinated framework. The Act clarifies and brings effect to the State's trusteeship as well as providing a platform for the participation of a wider range of role players, especially previously disadvantaged and land dispossessed communities, in conservation and protection of biodiversity. This participation includes conserving biodiversity for economic, social, and cultural reasons. The absence of meaningful incentives for private and communal landowners to voluntarily conserve biodiversity, and the significance ofthis, is also discussed. Finally a consideration is given of the secondary aim of this legislation, to simplify the statutes concerning the conservation of biodiversity and particularly those pertaining to protected area establishment. This simplification is only partially achieved as a number of protected areas are still not at all or partially regulated by the Protected Areas Act. This may be a source of confusion and uncertainty.
Large and grey : whales, elephants, and international law and politics.
(2008) Edmund, William Franz Couzens.; Kidd, Michael Anthony.
This thesis is an investigation into, and a gathering of evidence on, the various ways in which two iconic species, whales and elephants, and the two conventions which govern their management, the 1946 International Convention for the Regulation of Whaling (ICRW) and the 1973 Convention on International Trade in Endangered Species (CITES), are linked in international law and politics. After explaining the nature of international conventions governing wildlife species generally, the respective histories of the two conventions are considered: first, that of the ICRW is considered, together with its strengths, weaknesses and current position; after which a similar assessment is made of CITES. The history of linkage between the two is considered, including attempts made to use the one to undercut the other. Various aspects of the protection, use and management of the two species are then canvassed; and it is shown how important political actors hold apparently mutually exclusive views. Throughout, the position of South Africa is particularly considered. The importance of protecting biological diversity is then considered, together with the potential harmonising role of the 1989 Convention on Biological Diversity (CBD), and the political stances of various countries, together with ongoing analysis of efforts to effect change. The natures of whales and elephants as symbols, and as special animals, are then considered. In conclusion, it is explained that both treaties could work if the political drive was present - but that this is currently absent, and the environment is suffering whilst politicians argue over the best courses to follow to protect natural resources. It is suggested that the reason that the arguments in respect of whales and elephants, the ICRW and CITES, are so bitter is because so much is at stake - for the fight on this battleground is not simply about the particular species, but the course the world as a whole should follow in all of its use of natural resources. Understanding the links between species and between treaties helps us to understand alternative possible courses. By exploring one such set of links that has not previously been analysed, the research presented in this thesis is intended to make a contribution to that understanding (both internationally and within South Africa).
Whistleblowing : the other side of the coin
(2009) Easthorpe, Juanita.
No abstract available
The electronic monitoring of employees in the workplace.
(2010) Subramanien, Darren Cavell.
No abstract available
Biodiversity conservation on private land : an international perspective and lessons for South Africa.
(2008) Van Niekerk, Catherine Britt.; Kidd, Michael Anthony.
Conservation agreements have been used successfully around the globe for the conservation of biodiversity on private land. In South Africa however, their use to this end has largely been overlooked. Conservation mechanisms in the country have focussed primarily on traditional methods; establishing and managing protected areas identified as having some form of conservation significance. At present only 5.8% of land in South Africa is conserved in statutory protected areas, however government has committed itself to increasing this percentage to 8%. Furthermore, many of the country's biodiversity-rich areas are situated on private land and are currently afforded little or no protection. The cost of purchasing the land is not only financially prohibitive but also socially unacceptable and consequently alternative conservations mechanisms need to be explored. This study provides a comparative analysis of the legislation governing conservation agreements in the United States, Canada, Australia and New Zealand and highlights several common key provisions which have contributed to the success of these agreements. It also provides recommendations on possible changes to the South African legislation to allow for a more effective contribution by private landowners to biodiversity objectives and targets within the country. Although the study establishes that conservation agreements can be accommodated within South Africa's legal system it acknowledges that the success of these agreements is largely dependent on complex interactions between effective policy, supporting institutional arrangements, and attractive incentives. It cautions that if these agreements are to work in South Africa, then careful consideration needs to be given not only to tailor-making the legislation to the South African environment but also to establishing incentives which facilitate "buy-in" from landowners.
An analysis of the South African tax incentive for research and development and an international comparison.
(2010) Price, Shane Terrence.; Schembri, Christopher Carmelo.
The promotion of science & technology and the creation of an enabling environment for countries innovation systems has been a growing worldwide trend in developed countries, with 21 out of 30 member countries of the Organisation for Economic Co-operation and Development (OECD) currently utilising some form of tax incentive program aimed at encouraging investment in research and development (R&D) by private industry. 1 Encouraging R&D and associated innovation is generally seen as an effective tool in advancing science and technology, which in turn leads to the creation of new products and services, an increase in international competitiveness of local business, direct foreign investment and social spin-offs in the form of increased employment and economic growth? R&D is, however, expensive and involves high levels of technical risk, with the costs and risk involved often outweighing the potential profit. Consequently, many businesses choose not to perform R&D, which has resulted in governments of most developed countries having implemented various incentives to encourage private business to undertake R&D. These incentives can take the form of either direct incentives (grants, soft loans, subsidies etc) or indirect incentives (such as tax incentives). Tax incentives effectively subsidise the costs of R&D, making it a more attractive and profitable alternative for business. Developed countries, including: the United States of America (US), the United Kingdom (UK), Japan, China, Canada and Australia have all adopted a combination of both direct and indirect incentives, with various tax incentive measures receiving much attention in the last 2 decades. In South Africa the legislation providing for R&D tax incentives has been substantially amended in recent years through a number of Taxation Amendment Acts,] culminating in the enactment of s lID of the Income Tax Act 58 of 1962 (the Act). The aim of this dissertation is to critically examine the current South Afi'ican tax incentive scheme as contained in sliD, focusing on the eligibility requirements of that incentive. In addition, the dissertation will highlight design features and characteristics of the incentive, particularly in respect of its generosity, predictability, simplicity, administration and targeting. 4 The design and characteristics of the South African incentive is then compared to those of three different countries: the UK, Australia and Canada.s Based on the analysis and comparison, certain lessons are identified for South Africa6 and various opinions are advanced on the effectiveness of the current structure and whether particular aspects of it could be improved going forward.
Introducing cash transfers as a form of social protection for orphans and (other) vulnerable children in Zimbabwe :lessons from other African countries.
(2010) Manyika, Lin Mary.
Zimbabwe made commitments- global, regional and national- towards the fulfilment of the right to social protection for Orphans and Vulnerable Children (OVC) by ratifying international conventions and other regional instruments. Whilst such commitments are commendable, Zimbabwe has faced challenges in translating such commitments into actual deliverables. Currently, child protection mechanisms for OVC in Zimbabwe include, amongst others, Basic Education Assistance Module (BEAM), through which tuition fees, levy and examination fees assistance is provided to vulnerable children. The other social protection mechanisms are the food aid programme, public works programmes and the National Strategy on Children in Difficult Circumstances. An evaluation of the current social protection mechanisms for OVC in Zimbabwe, among other things, reported inadequate intervention of the current mechanisms so as to adequately provide for OVC. This may call for new innovative social protection mechanisms, like cash transfers, to replace some of the current mechanisms so as to adequately provide for OVC. Social cash transfers are receiving increasing recognition as a means of dealing with the of OVC problem worldwide, and more recently in Africa. There are a number of African countries that have introduced social cash transfers for children within their jurisdictions. Notable examples are South Africa, Zambia and Malawi. Social cash transfers have a positive impact on the education, health and nutrition of OVC. Social cash transfers do not involve large sums of money, thus they may be a desirable option for the social protection of OVC and their households in low income countries like Zimbabwe.
The en commandite partnership as a tax structuring tool.
(1999) Brown, Daryn.; Mitchell, Lindsay David.
The aim of this technical report is to provide a detailed and critical review of the suitability of the en commandite partnership for tax structuring both generally and specifically. The report takes cognisance of the requirements that a financial institution might consider in its determination of the utility of the en commandite partnership as a tax structuring tool in a structured or corporate finance environment. The report begins with an overview of the primarily legal requirements for the creation of a valid partnership. It then considers specifically whether the en commandite partnership is able to take the place of the 'Lessor Trust Arrangement' and researches specific issues germane to the enquiry. Specific legislation dealing with en commandite partnerships is then researched and includes a commentary on the provisions of s 24H and s 8(5)(a) of the Income Tax Act. Practical examples of the use of the en commandite partnership are then considered which challenges the concept of traditional loan finance and suggests the capital contribution as a tax efficient alternative. A consideration of the possibility of a challenge under the anti-avoidance provisions of the Income Tax Act concludes the report.
Gender reassignment surgery : medical issues and legal consequences.
(2000) Dhai, A.; McQuoid-Mason, David Jan.
Gender reassignment procedures are performed for the treatment of the gender dysphoria syndrome (transsexualism). Although this modality of treatment is therapeutic in nature and therefore not contra bonos mores, the legal status of the post-operative transsexual remains that of his/her previous sex. The purpose of the gender reassignment procedures is that of acceptance within the community as a person of the sex indicated by his/her changed appearance. Nothing will be achieved by the successful completion of treatment if the person's changed sexual appearance is not recognised by the law as a change in sexual status as well. The law, by keeping aloof of the problem of the post-operative transsexual, has created a legal "vacuum" where there is social and judicial acceptance of reassignment procedures, but a refusal to give legal effect to the change in status that the transsexual obsessively desires and the operation simulates. This work will analyse the medical issues associated with gender reassignment procedures. The legal status of the transsexual after reassignment procedures will be explored, and in doing so, the human rights violations with which such people have to contend, will be highlighted. The constitutionality of the lack of a legal recognition of the post-operative transsexual's sexual status will be examined. It will be shown that there are compelling reasons for legislation to be introduced as a matter of urgency to safeguard the fundamental rights of the post-operative transsexual.
Tobacco control legislation : the challenges of enforcement mechanisms.
(2002) Buthelezi, Michael Celumusa.; Singh, Annette.; Reddi, Managay.
No abstract available.
An examination of the availability and accessibility of health care services in the rural area of Shongweni.
(2004) Ntoa, Ntefeleng.; Singh, A.
The study examines the availability and accessibility of health care services in rural areas in relation to the right to health. The area that has been selected for the purpose of this study is the Shongweni area in the Province of KwaZulu - Natal. The area is situated on the border of Mpumalanga and Durban Region under the Outer - West City Council.
A critical commentary and analysis of South African tax legislation affecting the different offshore investment structures that are available to residents.
(2002) Terry-Lloyd, Jaqueline Jo-Ann.; Mitchell, Lindsay David.
The aim of this dissertation is to provide a detailed and critical commentary on and analysis of South African tax legislation affecting the different offshore business or investment structures available to residents of South Africa so as to establish which is the most tax efficient structure. The different business structures analysed in this dissertation included the following: • Sole proprietorships. • Partnerships. • Companies. • Trusts. The principle provisions of the Income Tax Act dealt with in this dissertation include the following: • Section 9D. • Section 9E. • Section 9F. • Section 25B(2A). • Paragraph 80 of the Eighth Schedule. The following three countries have been selected as countries of investment choice: • The United Kingdom (a ' designated country'). • Kenya (not a ' designated country'). • The Isle ofMan (a tax haven).
Does international law protect children against recruitment into armed forces? : the case of Africa.
(2010) Kundishora, Elna.; Couzens, Meda Mihaela.
The involvement of children in conflict is not a recent phenomenon. The military use of children dates back to ancient times. The change of warfare and the advocating of the protection of children's rights within the global discourse context have taken the discourse on child and youth involvement in conflict out of the political and military context and placed it into one circumscribed by legal and moral concern. Since the late 1970s, a number of international instruments have been promulgated to limit the recruitment of child soldiers, but even though the numbers of children being recruited into armed forces have decreased, children continue to be deployed into armed forces, particularly in Africa. 'Loopholes', vagueness and inconsistencies in the treaties and the strengths and weaknesses of the enforcement and monitoring mechanisms have created legal uncertainty which have ultimately resulted in further injustice for the child. However, legal uncertainty is not per se the cause of recruitment continuing; the cause being more complex. Researches and treaties have failed to address the obstacles to the implementation of the relevant international law. The issue(s) of culture and child crossborder recruitment have served as obstacles to an effective protection of children against recruitment by international law.
Can minors claim a right to die? : an analysis within the South African context.
(2008) Paul, Ashley C.
No abstract available.
The rule of law in a state of emergency.
(1997) Pillay, Camilla.; Devenish, George Edwin.
No abstract available.
The impact of the constitution on the common law of defamation.
(1998) Rajoo, Shalini Kisten.
No abstract available.
Preventive law.
(1981) Robertson, Michael Keith.; McQuoid-Mason, David Jan.
No abstract available.
The Law of privacy in South Africa.
(1977) McQuoid-Mason, David Jan.; Lund, James Robert.
No abstract available.
Food labelling legislation.
(1990) Lakhani, Chaya Pranlal.; McQuoid-Mason, David Jan.; McGill, A. E. J.
Food labelling serves to (a) inform consumers about the attributes of a food product so that they can make rational and well-informed choices; (b) assist manufacturers in marketing their product; and (c) warn consumers about the inherent risks of certain products, or ingredients in the product. The costs of labelling products fully and informatively are borne by consumers, but the benefits of labelling outweigh the costs. To understand the role of labelling in an regulatory system it is vital to consider the arrangement of the provisions protecting consumers generally before considering food laws and the labelling regulations. Furthermore, due to food being an international product, it is necessary to consider foreign countries and the manner they go about in protecting consumers. The United Nations, under the auspices of the Food and Agriculture Organization (FAO) and the \Vorld Health Organization (WHO), established a Joint FAO/WHO Food Standards Programme, called "Codex Alimentarius". The aim of the programme is to establish standards that can be used internationally to narrow the gap between developed countries and developing countries. To establish a standard various organs of the Codex Alimentarius are consulted. In addition, the standards have to comply with a prescribed format and follow a specified procedure. For the standard to be observed the member country has to incorporate the standard into its domestic laws. One of the advantages of the Codex Alimentarius is that the procedure to establish a standard is flexible. Australia, United Kingdom and the United States of America are member of the Codex Alimentarius. Australia, a federation of states, protects consumers by legislating either state and/or Commonwealth laws. Often there is a combination of statutes. Examples of subjects that are governed by both Commonwealth and states include false or misleading trade practices, and weights and measures. Commonwealth laws only deal with the freedom of information. Food laws are governed exclusively by state legislation. A significant area for future reform is uniformity of the state food laws. There are also other areas for future reform (eg date marking). England and Wales protect consumers by enacting statutes that relate to private and public rights. The important Acts that protect public rights are the Trade Descriptions Act, Weights and Measures Act, Consumer Protection Act, Fair Trading Act and Food Act. One of the provisions of the Criminal Courts Act is to protect personal rights when a consumer suffers personal injury, loss or damage as a result of the offender committing an criminal offence. Food labelling is governed by regulations, that are progressive. A fundamental criticism of the legislation and regulations is the lack of appropriate enforcement of the laws. The enforcement of most of the above Acts is delegated to the local weights and measures authorities. A further complication is the United Kingdom's membership of the European Economic Community. The United States of America enacts federal and state legislation. In protecting consumers in respect of food, it enacts federal legislation. The important Acts include the Fair Packaging and Labelling Act, the Meat Inspection Act, the Poultry and Poultry Products Inspection Act and the Federal Food, Drug and Cosmetic Act. The United States government also encourages openness, with regards to its public agencies, by creating the Freedom of Information Act. The class action is an innovative remedy established in terms of the Civil Procedure Act. The enforcement of food laws is delegated to the Food and Drug Administration (FDA). The protection afforded by the United States government is complex and sophisticated. Its laws serve as model for many countries. The common law of South Africa has limited value in safeguarding consumers. Consumer protection arise mostly by way of legislation and regulations. Consumers are protected generally by the Measuring Units and National Measuring Standards Act, Trade Metrology Act, Trade Practices Act and Harmful Business Practices Act, Standards Act, Dairy Industries Act and the Marketing Act. Consumers are protected against harmful and injurious foodstuffs by the Foodstuffs, Cosmetics and Disinfectants Act, and the regulations promulgated in terms of the Act. There are several problems with the laws, eg lack of enforcement, lack of consumer awareness and education, and so on. An analysis of the foreign countries discussed in Part II result in the indication of twel ve themes. Part III examine the twelve themes and present solutions. Some of the solutions are based on comparisons with foreign countries discussed in Part 11. The main issues that need to be addressed in the short-term are the lack of consumer education and problems of enforcement of consumer protection. Long-term issues include the feasibility of introducing a department of consumer affairs and the provision of statutory civil remedies for consumers.

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