Doctoral Degrees (Law Multidisciplinary)
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Item Religion and the law: Exploring the boundaries between the right to equality based on sexual orientation and religious freedom.(2023) Easthorpe, Juanitha Anne.; Strode, Ann Elaine.; Freedman, David Warren.The intersection of religion and law remains complex. It is not simple to find a solution to an issue that falls within the realm of this area. The right to freedom of religion and equality are constitutionally protected and sometimes these two constitutional rights become competing fundamental human rights. The religious injunction against same-sex marriage is an issue which falls squarely within the complexity of religion and law. With both equality and freedom of religion at odds with each other, it becomes important to balance these rights. This cannot be done without acknowledging the fact that religion has always featured predominantly in our past and influenced many aspects of our lives. However, our history of past discrimination directed at vulnerable groups must also be acknowledged. It is for this reason that this thesis examined the legal soundness of the injunction against samesex marriage in some Christian denominations. With our constitutional objective being to bring about a cohesive society, a strong presumption in favour of equality must be considered. On this basis the thesis found that the religious injunction against same-sex marriage was unconstitutional and therefore legally unsound. In dealing with these matters our courts need to approach the issue sensitively by considering transformative remedies without criminal sanctions. It is for this reason that the thesis also attempted to identify the most appropriate litigation strategy that affected parties can rely on when challenging the injunction against same-sex marriage. The Equality court was deemed the most appropriate forum for resolving disputes between religious denominations and their LGBTQI+ congregants. The transformative remedies which the court will consider are potentially available in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Transformative remedies are in principle more acceptable to religious denominations as they refrain from interfering with the core doctrinal beliefs of the church but also allow these religious denominations the time to review their policies and motivate for change. It also minimises the possibility of a split in the church and adheres to the doctrine of constitutional subsidiarity.Item The organic development of a legal writing and tutoring programme at the University of KwaZulu-Natal School of Law: Reflections on a sustainable, structured approach to teaching and tutoring legal writing in South African law schools.(2022) Crocker, Angela Diane.; Strode, Ann Elaine.; Freedman, David Warren.Although much advocacy work takes place in courts, a considerable amount of the background work and day-to-day tasks of lawyers is writing and clearly articulating various legal positions. Thus, the ability to write like a lawyer is very important. However, legal academics as well as the law profession have consistently made the point that there is a real issue with the quality of legal writing of law students. This is a problem that many South African Universities are grappling with, and which must be addressed urgently. An examination of the literature, through the lens of four iterations of legal writing programmes implemented at the University of KwaZulu-Natal School of Law, Howard College, shows that the key drivers of good legal writing are critical thinking and student motivation. If these principles are incorporated into the structure of the programme, it will help students to be motivated to think critically, which will enable them to engage on a sufficiently deep level with the material being studied. This in turn should help to produce written work that is persuasive. Thus, it is submitted that the design of a legal writing programme should include four teaching principles: the constructive alignment of the programme; a commitment to learner participation; the implementation of conversations in feedback; and the transformative contextualisation of programme materials. However, the real question is how can a sustainable, structured approach to teaching and tutoring legal writing in South African law schools be achieved with large classes of novice legal writers and legal lecturers sometimes having overwhelming teaching loads and competing academic commitments? It may seem like an impossible task, but it is not if the legal writing programme is pedagogically well-designed and administratively well-structured. This thesis submits that the answer lies in training senior law student peer tutors to assist in a legal writing programme.Item Privacy by (re)design: a comparative study of the protection of personal information in the mobile applications ecosystem under United States, European Union and South African law.(2020) Donnelly, Dusty-Lee.; Thaldar, Donrich Willem.The dissertation presents a comparative desktop study of the application of a Privacy by Design (PbD) approach to the protection of personal information in the mobile applications ecosystem under the Children’s Online Privacy Protection Act (COPPA) and the California Consumer Protection Act (CCPA) in the United States, the General Data Protection Regulation (GDPR) in the European Union, and the Protection of Personal Information Act (POPIA) in South Africa. The main problem considered in the thesis is whether there is an ‘accountability gap’ within the legislation selected for comparative study. This is analysed by examining whether the legislation can be enforced against parties other than the app developer in the mobile app ecosystem, as it is theorised that only on this basis will the underlying technologies and architecture of mobile apps be changed to support a privacy by (re)design approach. The key research question is what legal approach is to be adopted to enforce such an approach within the mobile apps ecosystem. It describes the complexity of the mobile apps ecosystem, identifying the key role players and the processing operations that take place. It sets out what is encompassed by the conceptual framework of PbD, and why the concept of privacy by (re)design may be more appropriate in the context of mobile apps integrating third party services and products. It identifies the core data protection principles of data minimisation and accountability, and the nature of informed consent, as being essential to an effective PbD approach. It concludes that without strengthening the legal obligations pertaining to the sharing of personal information with third parties, neither regulatory guidance, as is preferred in the United States, nor a direct legal obligation, as created by article 25 of the GDPR, is adequate to enforce a PbD approach within the mobile apps ecosystem. It concludes that although a PbD approach is implied for compliance by a responsible party with POPIA, legislative reforms are necessary. It proposes amendments to POPIA to address inadequacies in the requirements for notice, and to impose obligations on a responsible party in relation to the sharing of personal information with third parties who will process the personal information for further, separate purposes.Item The relationship between international criminal law and state sovereignty in Africa as seen through the lens of the application of the principles of universal jurisdiction and personal immunities.(2018) Mushoriwa, Teedzai Linda.; Gevers, Christopher Carl.; Bosch, Shannon Joy.No abstract available.Item Studies in South African legal sources, constitutional law, the administration of justice and the conflict of laws.(1971) Kahn, Ellison.;No abstract provided.Item Harmful cultural and traditional practices : a roadblock in the implementation of the convention on the elimination of discrimination against women and the Maputo protocol on women's rights in Tanzania.(2017) Msuya, Norah Hashim.; Ntlama, Nomthandazo.The focus of this study was largely on the effect of harmful cultural beliefs and practices regarding women’s rights as enshrined in international, national and regional legal instruments that apply to the Tanzanian legal framework. The study examined and provided an overview of relevant aspects of existing culture and traditions that were found to be in conflict with the provisions of Tanzania’s Constitution and domestic legislation. In light of the findings, there is an urgent need for the reform of various legislations in order to adhere to the resolutions of the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Maputo Protocol. A literature review was conducted to analyse the judicial decisions in Tanzania and other African countries in terms of the domestication of international human rights instruments that protect the rights of women through due process of judicial review. This undertaking was underpinned by the prime purpose of this study which was to analyse the impact of culture and traditions on the implementation of CEDAW and the Maputo Protocol in the Tanzanian context. The study revealed that some cultural beliefs and traditions in Tanzania continue to subordinate, discriminate against and harm women in the context of family, clan and community life. The values that are entrenched in customary law practices are used to justify the violation of women’s human rights. Many cultural practices that subject women to abuse continue to prevail despite the existence of appropriate domestic legislation that prohibits such practices. This study discovered that several discriminatory laws that negatively impact women’s rights are still enforced in Tanzania and that intentions to amend these laws and to remove discriminatory provisions have been hindered by strong traditional resistance. It was also established that, notwithstanding the provisions of international human rights instruments and the Constitution of the United Republic of Tanzania, which clearly prohibits any form of discrimination through the recognition of the equality of all human beings and guaranteeing equality and protection of all before the law, some judges still do not find it unjust to make decisions based on discriminating legislation. Rather, these judges choose to make decisions based on harmful customary rules without consideration of human rights principles that are enshrined in the country’s Constitution. In these circumstances, they persist in presenting divergent views on the interpretation of the rules. 214585778 Based on the findings of this study, it is argued that, in order for customary practices to make any meaningful impact of the lives of women in Tanzania and in Africa at large, these practices must be EXERCISED within a human rights framework. Furthermore, full domestication of international human rights instruments that protect women is of paramount importance in the implementation of women’s rights to strengthen the hands of law enforcers. However, the application of the law alone is limited in addressing women’s rights, as the stereotyped mind-set of Tanzanian and many other African societies needs to be CHANGED for a better realisation of women’s rights.Item Penal discourse and imprisonment in South Africa : an examination of the evolving discourse surrounding imprisonment in South Africa, from the colonial period to the post-apartheid era, and it's effects on the human rights of prisoners.Peté, Stephen Allister.; Zaal, Frederick Noel.The focus of this thesis is on the evolving public discourse surrounding imprisonment in South Africa from the colonial period to the post-apartheid era, and its effects on the human rights of prisoners. Although the punishment of imprisonment has dominated the penal landscape for around 200 years it is clear that, in terms of its stated aims of reducing crime and rehabilitating criminals, it has proven to be an abject failure. The influential philosopher Michel Foucault maintains that the failure of this form of punishment was apparent from the very beginning of its rise to prominence in the Nineteenth Century. It turned out, however, that the very failure of the prison system – its propensity to "create" a class of criminals separated from the rest of society – was useful in the context of developing capitalist industrial societies. As a result, this form of punishment did not wither away, but continued in existence despite repeated crises and widespread public acknowledgement of its failure to reform criminals or to reduce crime. The above may be true of the manner in which imprisonment, as a form of punishment, evolved in France and in the developed world in general, but the question at the heart of this thesis is whether or not Foucault's theory holds true in the South African context. In other words, by carefully tracing the public discourse surrounding imprisonment in South Africa from the colonial to the post-apartheid periods, a primary aim of this thesis is to establish whether the evolution of imprisonment in South Africa follows the same pattern as that outlined by Foucault – a pattern of apparent "failure" from the very start, with regular and repeated, but ultimately futile, attempts at "reform". By showing that this is, in fact, the case – that the South African prison system has been lurching from crisis to crisis since its inception, with the same "solutions" being suggested from one decade to the next – this thesis suggests that the "problem" with imprisonment in this country lies at a structural and ideological level. If this thesis is correct, "reforming" the South African penal system will not be possible without completely rethinking imprisonment as a form of punishment at an ideological level. Precisely what such a rethinking might entail, this thesis leaves open for future scholarship. An important secondary aim of this thesis is to trace the evolution of penal ideology in the South African context. In other words, it sets out to trace the development of the perceptions and ideas which have underpinned the punishment of imprisonment in this country over its history. Starting in the colonial period and focusing in particular on colonial Natal, these ideas may be described as the articulation of the penal theories and assumptions of an industrialised metropolitan political economy – Great Britain – and those of a rural colonial political economy – the Colony of Natal. A unique ideology of racially defined punishment emerges strongly towards the end of the colonial period. Moving to the apartheid period, through a careful analysis of various themes which arise in the public discourse surrounding imprisonment, the thesis traces the penal ideology operating within a society rigidly segregated according to race. Finally, once again through a careful analysis of the public discourse surrounding imprisonment, the ideas and perceptions which underpin punishment within post-apartheid South Africa, are examined. The thesis thus provides a unique overview of the manner in which penal ideology has developed within a uniquely African setting, by tracing the evolution of a set of ideas reflected in public discourse. A tertiary aim of this thesis is to trace the manner in which the role played by imprisonment within the social, political and economic structure of the country as a whole, has changed over time – together with social, political and economic developments. The use of imprisonment as a mechanism of social control during various periods – particularly the colonial and apartheid periods – as well as the constant problems which arose within the South African penal system because of this, is particularly important. Finally, as part of a detailed analysis of the public discourse surrounding imprisonment in South Africa during specific periods in the colonial, apartheid and post-apartheid eras, this thesis examines selected themes and sub-themes which emerged at various times. Taken together, these themes and sub-themes provide a series of "snapshots" of what it was like to be imprisoned in South Africa at particular times in the country's history. A constant focus throughout the thesis is the manner in which the human rights of South African prisoners have been abused from the time that prisons rose to prominence in this country almost two centuries ago – to the present day. This thesis strives not to lose sight of the human suffering which has characterised imprisonment in South Africa from colonial times to the present.Item Corruption and the law : an evaluation of the legislative framework for combating public procurement corruption in South Africa.Sugudhav-Sewpersadh, Prenisha.; Devenish, George Edwin.No abstract available.Item 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.Item 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.Item 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.