Law Multidisciplinary

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Studies in South African legal sources, constitutional law, the administration of justice and the conflict of laws.
(1971) Kahn, Ellison.;
No abstract provided.
Codification: its evolution, obstacles and achievements; and its value in South Africa.
(1984) Farran, Susan Elizabeth.; Milton, John Robert Landrey.; Baxter, Lawrence Gerald.
No abstract provided.
The regulation of road transportation in South Africa.
(1986) Plasket, Clive Michael.; Baxter, Lawrence Gerald.
No abstract provided.
A critical evaluation of the efficacy-validity criterion of Kelsen's Theory of Revolutions with especial regard to selected case-studies.
(1989) Cohrssen, Friedrich Karl.; Hoexter, Cora.
The efficacy-validity criterion of Kelsen·s theory of revolutions can be impugned in both its theoretical and practical dimensions. The philosophical foundation of this criterion is contained in the Is-Ought dichotomy between which there exists, according to Kelsen, an "unbridgeable gulf". The questionable nature of this premise is borne out by empirical examination in showing that there exists a necessary and substantial connection between the Is of socio-political and factual reality and the Ought of normative ideality, which far exceeds the minimum of effectiveness which Kelsen is prepared to concede as forming the content of the Ought. This becomes more apparent when a specific examination of this dichotomy is undertaken in relation to the efficacy-validity criterion, a special case of Is-Ought. Firstly, in its theoretical dimensions, it is clear that there exists a necessary and conditional relation between the efficacy of a single, individual norm and its validity. Secondly, and more significantly, there also exists a substantial connection between the efficacy (sociological sphere) and the validity (normative sphere) of the legal order as a whole. This is borne out by an examination of the pivotal Grundnorm conception which Kelsen postulates as forming the ultimate, presupposed 'Ought' validating a given legal order. Even from a theoretical perspective, it is clear that this conception is predicated on more than just the minimum of effectiveness which Kelsen concedes for it. In actual fact, this fundamental norm, which validates the legal order, is a product of the very "impurities" of sociology, politics, morality, justice, history, ideology etc. which Kelsen is so vehement in delimiting from the purview of bis Pure Theory of Law. The examination of this conception in its practical applications in dynamic revolutionary situations further underscores this point and, at the same time, exposes its limitations. This can be perceived in the fact that since the destruction of the Grundnorm of the old legal order need not be done contemporaneously with the positing of a new Grundnorm, Kelsen·s revolution theory admits of the possibility of there being a hiatus in the legal system. More significantly, the shortcomings of the Grundnorm conception highlight the deficiencies and inadequacies that inhere in Kelsen·s efficacy-validity criterion with which the Grundnorm is in extricably interlinked. As a result, and in order to reflect more adequately the underlying politico-sociological realities of revolutionary situations, additional and more flexible criteria are suggested in order to supplement the inadequacy of, or, alternatively, to limit the socially undesirable consequences of the employment of efficacy-validity in vacuo. In so doing, the necessary overlap between efficacy and validity in its practical dimensions is further underscored. It is especially in the critical evaluation of the relevant revolution cases that the practical inadequacies and uncompromising rigours of the judicial employment of this criterion are demonstrated. It is also noteworthy that the judges in certain revolution cases should have departed so markedly from the strict Kelsenism reflected in this criterion, by the employment of additional limiting principles. It is clear that while efficacy remains probably the dominant test of legality, its adoption as a blanket test of legality cannot be sustained. This holds equally true within the sphere of the international legal order. Although this criterion may be readily reconcilable with the traditional criteria of statehood (all of which are based. on effectiveness) this is no longer the case in modern state practice where further limiting and, at times, contradictory principles have been evolved to serve as criteria of legality.
A critical examination of South African legislation pertaining to the abused child.
(1994) Dickerson, Tracey-Leigh.; Lupton, Michael Leslie.; Schwikkard, Pamela-Jane.
The physical and sexual abuse of children is primarily a complex, insidious socio-psychological . problem, and secondly, a legal concern. Accordingly, any attempt to examine the phenomenon from a legal perspective, requires by necessity, an acknowledgement of the multi-dimensional nature of the problem. This thesis attempts to provide the reader with a comprehensive overview of the current state of medical, psychological and social knowledge on child physical and sexual abuse. Following on this, an examination is made of the legislation pertaining to the protection of the abused child within the home and the courtroom. In respect hereto, review is made of the development of the legal response to child abuse, those provisions within the Child Care Act 74 of 1983 pertaining to child protection, the issue of a legal definition of child abuse, corporal punishment and the rules of evidence and procedure impinging upon the child witness. During the course of this thesis, regard is had primarily to current psychological research findings. This is particularly apparent in respect of issues dealing with the alleged inferiority of the child witness in the courtroom. Here, psychological evidence is provided to show that major discrepancies exist between the positive view of the child witness, which is emerging from current experimental studies, and the skeptical approach to such a witness by the legal system. Throughout the thesis, a call is made for the realignment of the law with medical, psychological and social realities. Unless such takes place, the legal response to child abuse will remain an ineffective and harmful experience for any unfortunate child victim.
Informal settlements, legislation and planning in South Africa.
(1996) Smith, Donovan.; Milton, John Robert Landrey.
Informal settlements in urban areas In South Africa are a result of urbanisation and the inability of past legislation to adequately accommodate informal settlements. The unwillingness of past governments to accept and plan for informal settlements and the resultant lack of infrastructure has and continues to increase the negative impact of informal settlements on the environment. Democracy in South Africa has heralded an era of Constitutional Supremacy. Legislation must be consistent with the constitution. A future constitution is likely to include a right to housing, as well as property and environmental rights. These rights as well as the framework provided in the Constitution for the different levels of government have important implications for informal settlements. The government will be unable to provide formal housing for everyone. Informal settlements will therefore need to form a part of a solution to the housing crisis in South Africa. If the negative environmental consequences of informal settlements a􀁻 to be minimised, and informal settlements are to provide safe and secure shelters then South Africa will require effective planning legislation. Planning legislation in South Africa is presently fragmented and ineffective. This is also true of land and housing legislation. The Prevention of Illegal Squatting Act 52 of 1951 is a reactive piece of legislation which does not have a constructive role to play fn planning for informal settlements. Relatively new legislation such as the Development Facilitation Act 67 of 1995 and the Less Formal Township Establishment Act are crisis orientated and -are not alternatives to coherent long term planning legislation. Various national discussion documents pertaining to planning, land and housing should be used to formulate comprehensive planning legislation. It must be ensured that this legislation provides for the needs of informal settlements. It should also ensure that informal settlements are the responsibility of all three tiers of government, and local and provincial government have sufficient powers to assist in providing a solution to the problems of informal settlements. The legislation should also incorporate the concept of Environmental Impact Assessment to ensure that development is sustainable. Present legislation is inadequate. Effective planning legislation must be established in order to ensure informal settlements are able to provide safe and healthy environments.
The combatant status of non-State actors in international armed conflicts, in light of the notion of direct participation in hostilities : an analysis of relief workers, journalists, voluntary human shields, private-military and security contractors, and under-aged child soldiers recruited into non-State organized armed groups.
(2012) Bosch, Shannon Joy.; Carnelley, Marita.; Cowling, Michael G.
The increased outsourcing of many traditionally military functions, together with the fact that international armed conflicts are increasingly being fought in predominantly civilian locations, is contesting the international humanitarian law (IHL) presumption that civilians are necessarily non-participatory spectators in the theatre of war. The legal lacunae which surrounds non-State actors like: private military and security contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs), relief workers and journalists, is complicating the legal assessment of their primary IHL status, obscuring crucial determinations around whether their actions amount to direct participation in hostilities, and confounding certainty around the legal regime applicable to them upon capture. Through critical analysis of customary and treaty based IHL, this project explores the primary IHL status of each of these types of non-State actors. Thereafter it seeks, through practical application of the ICRC’s Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific conclusions on the range of activities that might compromise their civilian immunity against direct targeting. In the final analysis the study concludes that engaging in combat functions, operating weapons systems, participating in direct support functions, conducting training for predetermined hostile acts, sabotaging military capacity, guarding captured military personnel, gathering intelligence for use in marking targets, divulging tactical information or acting as a lookout will amount to direct participation in hostilities. Through similar investigation, the study concludes that mere interference, defensive guarding or shielding of civilian or other dual-use sites, and the defense of military installations against criminal elements, fails to rise to the threshold required to compromise a civilian non-State actor’s immunity against attack. While dispelling the misconception that civilian status itself can be legally forfeited, the project explores the practical legal consequences of civilian direct participation in hostilities: including legitimate direct targeting of these non- State actors for so long as their participation or membership of the combative group persist, and their criminal prosecution upon capture.
An analysis of challenging the commissioner's discretionary powers invoked in terms of Section 74A and 74B of the Income Tax Act 58 of 1962, in light of the Constitution of the Republic of South Africa 108 of 1996.
(2013) Erasmus, Daniel Nicolaas.; Williams, Robert Charles.
This thesis deals with the relevant law up to 30 September 2012. This thesis analyses the inter-relationship in particular between ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution of the Republic of South Africa (‘the Constitution’) (collectively referred to as ‘constitutional obligations’); s 4(2) of the South African Revenue Service Act 34 of 1997 (‘SARS Act’); the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’); and a decision by the Commissioner for the South African Revenue Service (‘the Commissioner’ or ‘SARS’, as the case may be) to exercise his powers under ss 74A and 74B of the Income Tax Act 58 of 1962 (‘ss 74A and 74B of the Income Tax Act’) by requiring taxpayers to produce or provide information, documents and things at the commencement of an inquiry or audit of taxpayers, and concludes that such a decision constitutes ‘administrative action’ as defined in s 1 of PAJA, or, alternatively is subject to the constitutional principle of legality. This conclusion is reached on the basis that such a decision, of an administration nature made, or leading to a further decision proposed to be made, or required to be made, to issue revised assessments will: · have been taken by an organ of State exercising a public power in terms of legislation; · involve the exercise of a discretionary power, where SARS determines whether and in what circumstances it will require a taxpayer to provide information, documents and things; · adversely affect taxpayers’ rights, and has a direct, external legal effect. The fact that the power in question is preliminary and investigative, and that its exercise does not in itself determine whether any tax, penalties and interest is payable, does not detract from the impending conclusion usually made by the same SARS officials that tax, penalties and interest will most likely become payable following from the preliminary investigation. The decision imposes on taxpayers an obligation to do something (to produce or provide information, documents and things) which, but for the exercise of that power, taxpayers would not in law be obliged to do, due to taxpayers’ privacy rights in terms of s 14 of the Constitution, and entitling them to expect SARS to abide by its constitutional obligations. A failure by taxpayers to comply exposes them to criminal prosecution under s 75(1)(b) of the Income Tax Act. Furthermore, the power exercised by SARS is not subject to the normal objection and appeal processes in the Income Tax Act, limiting the opportunity for taxpayers to challenge such a decision in terms of the Income Tax Act. Lastly, there is no relevant exclusion in the definition of ‘administrative action’ that removes this type of decision from that definition in PAJA.
Liability of directors for reckless and fraudulent trading : the continuance of s424 (1) of the Companies Act 61 of 1973 together with the coming into force of s22 and s77 (3) (b) of the Companies Act 71 of 2008.
(2013) Phungula, Simphiwe Peaceful.; Williams, Robert Charles.
This research paper focuses on the s424 (1) of the Companies Act 61 of 1973. It is deals specifically with the wording of the section and how courts have interpreted it. It critically explains the most cherished principles of corporate law as to the interpretation of the section. Notwithstanding the existence of s424 (1), in 2011 the new Companies Act 71 of 2008 came into force. The new Companies Act also deals with the liability of directors for reckless and fraudulent trading. However, the new Companies Act deals with such liability differently from s424 (1) of the companies Act of 1973. The difference between the s424 (1) of the Companies Act of 1973 and the new Companies Act of 2008 can be seen on the application of both Acts. Section 424 (1) of the Companies Act of 1973 applies by the application of creditors at the winding up of the company whereas the new Companies Act of 2008 introduces s22 which applies even when the company is still continuing to do business. Furthermore, s424 (1) of the Companies Act provides remedies to the creditors for the debts incurred by the company whereas the new Companies Act introduces s77 (3) provides for remedies to the company for any loss, damages, or costs sustained by the company as a direct or indirect consequence of the directors’ conduct. Accordingly, despite the coming to force of the Companies Act 71 of 2008, s424 (1) of the Companies Act 61 of 1973 still exist in the circumstances of winding up the company. The application of both s424 (1) and s22 and s77 (3) has encouraged me to deal with the topic of liability of directors for reckless and fraudulent trading. This research paper tries to look at both Acts and how they approach the liability of directors in the aforesaid manner. The research paper tries to look at what courts have said since the coming into force of the Companies Act of 2008 since 2011. I wish to deeply pass my gratitude to supervisor Professor RC Williams of University of KwaZulu Natal who has helped and guided me in completing this research paper. I also wish to thank Professor B Grant and D Subramanien who have also helped me in formulating the structure of this research paper.
The protection of the rights of children affected by HIV/AIDS in South Africa and Botswana : a critical analysis of the legal and policy responses.
(2013) Sarumi, Rofiah Ololade.; Strode, Ann Elaine.; Carnelley, Marita.
Abstract not available.
The employee's right to privacy versus the employer's right to monitor electronic transmissions from the workplace.
(2013) Chigumba, Patience.; Subramanien, Darren Cavell.
Privacy is important because it represents human dignity or the preservation of the ‘inner sanctum’. Due to technological developments the operational concerns of employers are continuously threatened or challenged by the employee’s right to privacy in the workplace. It is common knowledge that employees all over the world are exposed to numerous privacy invasive measures, including drug testing, psychological testing, polygraph testing, genetic testing, psychological testing, electronic monitoring and background checks. The issue at the heart of this dissertation is to determine to what extent privacy is protected in the South African workplace given advancements in technology and the implications (if any) for the right to privacy. A secondary aim of the dissertation is to attempt to provide a pragmatic balance between the privacy concerns of employees and the operational needs of employers in this technological age. This dissertation mainly focuses on the invasion of privacy in the workplace through the monitoring of focus areas of email, internet and telephone correspondences of the employee. To provide an answer to the research issue discussed above, this dissertation addresses four ancillary or interrelated issues. First, the broad historical development of the legal protection of privacy is traced, examined and a workable definition of privacy is identified with reference to academic debate and comparative legislative and judicial developments. Secondly legislation on the regulation of monitoring in the workplace is critically examined and discussed. Thirdly, those reasons and practices, which threaten privacy in the employment sphere, are identified and briefly discussed. More specifically, the dissertation considers how these reasons and practices challenge privacy, the rationale for their existence and, if applicable, how these reasons and practices may be accommodated while simultaneously accommodating both privacy and the legitimate concerns of employers. Fourthly, a detailed evaluation of the case law and judicial developments of South Africa on the right to privacy in the workplace are examined so as to seek a balance if any between the employee’s right to privacy and the employer’s right to monitor. To successfully tackle the above issues the dissertation uses the conventional legal methodology associated with relative legal research, which includes a literature review of applicable law and legal framework and a review of relevant case law.
A critical analysis of the implementation of the Maintenance Act 99 of 1998 : difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act.
(2014) Coutts, Tamazin L.; Carnelley, Marita.
Maintenance law in South Africa is based on the existence of the common law concept of the duty of support between dependant parties. As a result of this duty of support, parents are obliged to support their children whilst they are unable to support themselves. This is a right of all children. There has been a constant evolution of the scope of the common law concept of duty of support through both case law, and legislation, culminating in the Maintenance Act 99 of 1998. However, due to structural and procedural issues tied to the implementation of the Act, children's rights often go unprotected, particularly in cases where members of the public enter and engage in the maintenance system unrepresented. This dissertation aims to identify and address many of the problems encountered by maintenance court users on a daily basis. Specific reference is made to the experiences of the unrepresented public in the Eastern Cape Province, where research was conducted. The study begins with a historical overview of origins of maintenance law. This is followed by an overview of Act 23 of 1963 and the innovations which it brought about. Next, Act 99 of 1998 is reviewed, accompanied by an explanation of innovations and amendments, and criticisms. The research results are discussed on a comparative basis with already documented studies on the maintenance system as identified through an analysis of available literature on the subject. Further criticisms are identified through quantitative research, undertaken in the form of a survey conducted amongst Maintenance court users within 7 magistrate’s courts in the Eastern Cape Province. This dissertation continues to document suggested solutions to the problems highlighted, including corrections to the 1998 Act itself, as well as solutions and recommendations related to its implementation. The conclusion of this study is that one of the primary means of overcoming the short falls in the maintenance system is education of court users in their rights and responsibilities, as well as procedures to follow, with regards to the Maintenance Court.
Particular legal issues in international trade : a critique of the multilateral agreement on agriculture from the perspective of South Africa and Brics.
(2014) Moolla, Aslam A. S.; Stevens, Clydenia Edwina.
Abstract not available.
Fixed-term contracts and the reasonable expectation of renewal and the effect of the Labour Relations Amendment Bill 2012.
(2014) Mahomed, Aadila.; Whitear-Nel, Nicola Jane.
This dissertation aims to explore the nature of fixed-term contracts and their effect. Employees who are employed on fixed-term contracts usually develop a reasonable expectation of renewal. A reasonable expectation may arise where an employee, who has been employed on a fixed-term contract, or successive fixed-term contracts, then develops a reasonable expectation that s/he will be offered permanent employment. The common law position was that employees who were employed on fixed-term contracts could not have this expectation, as their contract expressly provided for automatic termination on a specific date, or on the completion of a specific project. However, the Labour Relations Amendment Bill which is now in force serves to change this position. It provides some relief to employees who are exploited in the sense that they are essentially kept in limbo- employed temporarily and without certainty or job security. In this dissertation, fixed-term contracts in general and relevant provisions of the Bill will be compared to international developments and standards.
Legislation regarding the role of the state and NGOs in addressing trafficking in persons : a focus on sexual exploitation in South Africa and Brazil.
(2015) Mellon, Andrea Claire.; Balogun-Fatokun, Victoria Aderonke.; Kreston, Susan.
No abstract available.
The judicial defense for affirmative action measures : a critique of the rationality standard of judicial review.
(2015) Mbutho, Sibusiso Blessing.; Cohen, Tamara Jodi-Ann.
The South African Constitution states that in order to promote the achievement of equality, legislative and other measures designed to protect those disadvantaged by unfair discrimination may be taken. One of these measures is affirmative action. For the constitutionality of measures in disputes the Court has opted for the ‘rationality’ standard of judicial review. This dissertation aims to critically analyse the rationality standard in the judicial defense of affirmative action measures through an examination of court cases and government legislation. It was found, firstly, that the role of rationality in the Constitution value structure as a whole is superficially confined to the legitimacy of governmental purpose. Its result excludes the full spectrum of competing interests and a determination of their relative weight in terms of an integrative account of the Constitution structure. Secondly, it was found that promoting the achievement of equality has proved to be problematic within the strictures of a rationality standard. It is concluded that to promote the achievement of equality requires a judicial review during affirmative action disputes to have regard to the impact of measures in their implementation within the ambit of right and value to equality. Legal standards are supposed to provide the basis to choose amongst varying competing ends or relate them in a meaningful way to an integrating normative standard in order to claim democratic justificatory and legitimizing value. The rationality standard needs to be amended to introduce a more substantive normative standard which ensures that the implementation of measures which passes constitutional muster also takes into account how it may affect other constitutional rights and values. The proportionality standard provides the degree of democratic accountability expected of rights- limiting measures by considering the impact which such measures may have on competing rights and the interests of those detrimentally affected by it.
Advance directives and euthenasia in frail care and the terminally ill.
(2015) Chetram, Alicia.; Maropeng, Norman Mpya.
Abstract not available
The sustainability of the Rotterdam Rules in modern multimodal transport : the possibility of harmony for liability under multimodal carriage contracts.
(2015) Matshinga, Linda Innocent.; Lamb, Deepa.
With the advent of containerisation in the 1960s, there was a significant need to alter the traditional legal approach to the long-distance haulage of goods. The use of containers made it possible for goods to be transported by different modes of transport from their point of origin to their destination without there being a need for unpacking in order to sort or verify them during the process of being moved from one mode of transport to another. This led to an increase, internationally, in the use of multimodal transport contracts for long-distance haulage. In the event of loss, damage or delay to the goods involved in multimodal transport, shippers and consignees desired to deal with a single operator who would bear responsibility for the entire transport in lieu of pursuing several unimodal carriers. Multimodal transport, however, is being operated in circumstances where the current international cargo liability regime for the carriage of goods is not harmonised i.e. the law of carriage is substantially influenced by unimodal transport conventions. The current carriage regimes are out-dated and unsuitable to deal with multimodal carriage. A cargo claimant whose goods are lost, delayed or damaged during international multimodal transportation is confronted with numerous difficulties in establishing liability under a multimodal carriage contract as he may find himself dealing with a number of different liability regimes. This becomes even worse when the stage during which the damage occurred cannot be localised and therefore it is not clear which unimodal liability regime is pertinent. There have been several calls from different authors for a true multimodal convention, covering all aspects of “door-to-door” multimodal carriage to be developed. The question that arises is whether the recently formed United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) has what it takes to meet the demands of modern multimodal transport and if it does, why then are states reluctant to ratify it. This study aims at examining the scope of application of the Rotterdam Rules in multimodal transport and its implications for the liability problems associated with multimodal transport. It will however not focus on the basis of liability, limits and other matters offered by the Convention.
Foresight of the causal sequence as a requirement of dolus eventualis in consequence crimes :
(2015) Mkhize, Amanda Pearl.; Walker, Shelley Ann.
Dolus eventualis is an important aspect of South African criminal which has undergone certain modifications. One of these modifications was formulated in 1989 in the case of S v Goosen. Before the decision of Goosen, the principle of law was that as long as the accused foresaw the occurrence of the unlawful consequence, the manner in which it occurred was irrelevant. Dolus eventualis was said to be present if death was foreseen as a possibility but occurred in a way which was not exactly the same as the way which was anticipated by the accused. The accused did not have to foresee the precise or general way in which death would be brought about; it was enough that death was desired or foreseen. The Goosen decision formulated the requirement of ‘foresight of the causal sequence’. This requirement is now essential in order to prove the existence of dolus eventualis in consequence crimes. According to the requirement of foresight of the causal sequence, the intention element is not satisfied if the consequence occurs in a way that differs markedly from the way in which the accused foresaw the causal sequence. This requirement differs from the principle followed by the courts in pre-Goosen decisions where foresight of the causal sequence was not necessary and was sometimes considered as irrelevant. All that was required was that the accused foresee the possibility of death occurring as a result of his or her unlawful conduct. The purpose of this dissertation is to critically analyse the requirement of foresight of the causal sequence by analysing the case of S v Goosen, exploring how commentators received the Goosen rule and investigating how the rule has been applied in practice. Although, the rule has attracted conflicting academic criticism, none postulate that the decision of Goosen made bad law. One of the problems of the Goosen rule is that it is not consistently applied in practice. Although this is undesirable, the rule has not been detrimental to the law and certainly does have a valuable place as it limits liability in common purpose cases, where an unlawful consequence occurs in a manner that the immediate party did not subjectively foresee.
To what extent do SPS measurers impact on market access for developing countries: a case study of South Africa.
(2016) Mutamba, Tendai.; Stevens, Clydenia Edwina.
No abstract available.

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