Department of Private Law
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- ItemAn analysis of the rationale behind the inclusion of the genetic link requirement in surrogate motherhood agreements in the Children's Act 17 of 2005(Stellenbosch : Stellenbosch University, 2018-03) Wallendorf, Bianke; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: This thesis seeks to analyse the rationale behind the inclusion of the genetic link requirement, contained in section 294 of the Children’s Act 38 of 2005 (“Children’s Act”) in surrogate motherhood agreements. Infertility has become a global phenomenon, making assisted reproductive technology more relevant than ever. Surrogacy, as one form of assisted reproductive technology, enables people who aspire to become parents to have a child (or children), by making use of a surrogate mother to do so. This is done by way of a surrogate motherhood agreement, which is regulated extensively by the Children’s Act. The Children’s Act sets out many requirements for a valid surrogate motherhood agreement. This dissertation entails an analysis of the genetic link requirement, which requires a genetic link between the child born pursuant to the surrogate motherhood agreement and at least one commissioning parent. In essence, this thesis considers the reasoning behind the inclusion of the requirement, which was confirmed as being constitutional in AB (CC) 2016 ZACC 43, in the Children’s Act. It considers the process of regulating surrogacy in South Africa, focussing particularly on the origin of the genetic link requirement, and the decision of the legislature to include the requirement in the Children’s Act. In order to provide context, the legal position in South Africa regarding this requirement is briefly compared with that of India and Greece; the former also requiring a genetic link, the latter legal system not containing such requirement. Since the genetic link requirement is a contentious requirement in South Africa, the conflicting jurisprudence dealing with the requirement is considered in detail. By extracting the rationales for the genetic link requirement contained in the preparatory documents used by the legislature in the enactment of section 294 of the Children’s Act, as well as those contained in the jurisprudence, it is suggested that the two primary rationales for the inclusion of the genetic link requirement in the Children’s Act is the genetic origin rationale and the adoption rationale. This thesis examines both rationales extensively, taking into account that children’s best interests are of paramount importance, and that South Africa has a unique context of poverty and racial inequality following the apartheid regime – the predecessor of a democratic South Africa.
- ItemThe application of the Copyright Act, 1978, to works made prior to 1979(Stellenbosch : Stellenbosch University, 1988-12) Dean, O. H.; Jordaan, H. A.; Schwietering, K.; Stellenbosch University. Faculty of Law. Dept. of Private LawArticle 1 Section 8 Clause 8 of the Constitution of the United States of America empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". This simple clause sums up in a few words the philosophy and underlying principles of modern copyright law. Copyright law, like other branches of intellectual property law (i.e. the laws of patents, trade marks and designs), seeks to create a system whereby the creator of original works or intellectual property is afforded a qualified monopoly in the use or exploitation of his work in order, first, to compensate and reward him for the effort, creativity and talent expended and utilized in the creation of his work, and secondly, to act as an incentive for him to use his talents and efforts to create more and better works or items of intellectual property. The qualified monopoly is limited in duration and after the expiry of the term the work falls into the public domain and can be freely used and reproduced by others. A balance is struck between the interests of the individual and the public interest. The rationale behind this philosophy is the establishment of a profit incentive for creators of intellectual property. The effectiveness of the profit motive is dependent upon the degree to which the creator of the intellectual property is able to maintain and enforce his qualified monopoly. If the law is not effective in enabling the creator of intellectual property to maintain and enforce his monopoly then the efficiency of the operation of the profit motive will be impaired. Consequently, the soundness and effectiveness of the law of copyright is a . significant factor in the promotion of the creation of intellectual property and ultimately• in enriching our culture and promoting our knowledge and well-being. Viewed from a different perspective, the purpose of copyright is to prevent one man from appropriating to himself what has been produced by the skill and labour of others1 . In broad terms, copyright may be described as the exclusive right in relation to a work embodying intellectual property (i.e. the product of the intellect) to do or to authorize others to do certain acts in relation to that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or profit. Copyright is an immaterial property right. The subject of the right is a work of the intellect or spirit and thus an intangible. Copyright in a work is akin to ownership in a tangible article. The following analysis of the essential nature of copyright by Slomowitz AJ in Video Parktown North (Pty) Limited v Paramount Pictures Corporation is instructive: "It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some or all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of his mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and is called 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. In this sense, copyright has sometimes been called 'intellectual property', as it indeed is. " Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items of property, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest in different persons. Transfer of the ownership of one of the i terns of property does not necessarily affect transfer of the ownership of the other item of property.
- ItemBuilding encroachments and compulsory transfer of ownership(Stellenbosch : University of Stellenbosch, 2010-12) Temmers, Zsa-Zsa; Van der Walt, A. J.; University of Stellenbosch. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: South African courts seem to be adopting a new approach to the problem of building encroachments. For pragmatic and policy reasons courts are now inclined to exercise its discretion in favour of leaving building encroachments in place, against compensation, despite the common law right to demand removal. It has been widely accepted that courts indeed have the discretion to award damages instead of removal of the building encroachment. However, the circumstances involved and the consequences of these orders are uncertain and hence these orders result in confusion. It is unclear how this discretion is exercised. Furthermore, it is uncertain whether this discretion includes the power to order transfer of the encroached-upon land to the encroacher. There are doctrinal and constitutional implications that may be triggered by these court orders that leave building encroachments in place. The doctrinal issues centre on what happens when an encroachment is not removed and nothing is said about the rights of the respective parties after the order is made. Possible solutions are investigated to provide a doctrinally sound outcome in encroachment disputes. It is clear that the encroacher is allowed to continue occupying the portion of property on which the encroachment is erected. It seems as though a use right is indirectly created when the encroachment remains in place. The constitutional difficulty lies in the fact that the court orders may result in infringements that conflict with section 25 of the Constitution. The focus is specifically to determine whether these orders result in the compulsory loss of property or property rights. With reference to Germany, the Netherlands and Australia, a comparative perspective is provided in order to support the doctrinal and policy arguments. The comparative law provides a source of guidelines for what may work effectively and informs the ultimate suggestion of this project, namely the need for legislation to regulate building encroachments in South Africa. The legislation envisaged would have to prescribe with at least some sort of certainty how and in which circumstances the discretion should be exercised. It should also provide clarity with regard to the right that is created when the encroachment is not removed and how the compensation that is awarded in exchange for removal, should be determined. The unnecessary confusion and uncertainty that result from court orders made in the context of building encroachments may be cleared up by legislation.
- ItemThe child's rights to, in and through basic education : an analysis of South Africa's international obligations(Stellenbosch : Stellenbosch University, 2021-03) Strohwald, Annemarie; Human, Sonia; Horsten, Debbie; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The child’s right to basic education is of utmost importance as it not only prepares but enables them to participate in society. The child’s right to basic education also enables the realisation of other human rights and provides the opportunity to rise above one’s circumstances. This dissertation centres on South Africa’s international obligations in relation to the child’s rights to, in and through basic education and whether or not these obligations have been fulfilled. Specific focus is placed on the obligations created by the Convention on the Rights of the Child (“CRC”) as it is regarded as the foundation of international law on the rights of the child and still remains one of the most widely ratified human rights treaties. Additional obligations created by the International Bill of Human Rights and the African Charter on the Rights and Welfare of the Child are also examined in the dissertation. In order to measure whether or not these international obligations have been fulfilled, the model for compliance is introduced. The model embraces a child-centred approach in the two frameworks that make up the model: the normative framework and the practical framework. The normative framework is founded on articles 28 and 29 of the CRC and the practical framework is based on the 4-A scheme. The dissertation proves that the value of the normative and practical frameworks is that while they are complementary and form the model for compliance, they are also essential frameworks independently. Both frameworks are essential components in order to measure international obligations as states must be normatively strong in their recognition and protection of the child’s right to basic education, but it also requires implementation. With the model for compliance clearly established, it is then applied in India and Nigeria in order to gain a comparative perspective. Attention is paid to constitutional and legislative frameworks as well as relevant case law in these two jurisdictions. India and Nigeria’s periodic reports to the CRC Committee and the ACERWC also form part of the analysis and indicate that the concerns identified by these two committees are not only passing comments but should be dealt with in order to meet international obligations and ultimately result in the realisation of the child’s right to education. ivWith the application of the model for compliance in the South African context, it is quite clear that the constitutional framework is unfortunately not mirrored by our current reality. While positive steps have been taken to align legislation and policy with the international standards of the normative framework, the implementation thereof remains a major challenge. The dissertation concludes with final reflections and recommendations on South Africa’s international obligations. The model for compliance as proposed in the dissertation is valuable as it incorporates a normative and practical framework that provides content to dimensions of the right to basic education. Striking a balance in the realisation and interpretation of children’s rights is very important, and the model for compliance attempts to find this balance.
- ItemA child’s right to basic education during the Covid-19 pandemic : a comparative analysis and evaluation of the impact of Covid-19 on the South African education system, and the effectiveness of the nation’s legal response in protecting a child’s right to education(Stellenbosch : Stellenbosch University, 2023-03) Padachey, Denisha; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH SUMMARY : It has long been accepted that a child’s right to education is of vital importance as it not only enables them to participate and function in society but enables the realisation of their human rights and fundamental freedoms. Since the onset of the Covid-19 pandemic, the education sector faced numerous disruptions and learners were prevented from physically accessing their schools. The Covid-19 pandemic and the ways in which jurisdictions were forced to respond had and continues to have severe impacts in terms of the existing and new forms of inequalities in relation to children and their right to education. The focus of this thesis is therefore a child’s right to basic education in light of the Covid-19 pandemic, with specific reference to the South African situation. This research thus aims to identify whether the legal responses in terms of the legislation, policies, regulations and mechanisms which have been introduced and implemented in South Africa during the Covid-19 pandemic, protected a child’s right to education or hindered the realisation a child’s right to education. It is argued that a one-size fits all solution cannot apply in situations of emergency such as the Covid-19 pandemic. This thesis therefore unpacks each respective nations obligations in respect of the right to education, as well as the status of education and educational attainment in each jurisdiction prior to the outbreak of the Covid-19 pandemic. Moreover, in order to determine how a child’s right to education has been impacted and whether the legal responses introduced were effective and protected a child’s right to education, this thesis shall make use of a comparative analysis approach wherein the situation in South Africa shall be compared to that of the United States of America, the United Kingdom, Italy and Nigeria. This will be done by analysing the legal responses of each jurisdiction utilising the 4 ‘A’ approach, and taking into consideration their national, regional and international obligations in respect of a child’s right to education. This research further explores whether the legal responses and mechanisms implemented in other jurisdictions are flexible and whether they can be successfully implemented in South Africa. Finally this thesis sets out recommendations in order to respond to the challenges which arose and continue to arise in education due to the Covid-19 pandemic and the subsequent legal responses.
- ItemCommunal land and tenure security: analysis of the South African Communal Land Rights Act 11 of 2004(Stellenbosch : University of Stellenbosch, 2009-12) Johnson, Ebrezia; Mostert, H.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: In this thesis, the Communal Land Rights Act 11 0f 2004 is analysed in order to determine whether it can give effect to the constitutional mandate in terms of which it was promulgated, namely section 25(5), (6) and (9) of the Constitution. Land policy pertaining to land tenure reform is discussed to see how and to what extent it finds application in the Act. The time-consuming process pertaining to the registration of the community rules is investigated, and the implications where a community fails to adhere to this peremptory provision in the Act are explained. The thesis also analyses and discusses the functions of statutorily created institutions, like the land administration committee and the land rights boards, in the efficient management of land in rural areas. The aforementioned land administration committee is particularly problematic, since the Act provides that in cases where a recognised tribal authority exist, that institution “may” be considered as the land administration committee, subject to prescribed composition requirements as contained in the Act. The Traditional Leadership and Governance Framework Act will also be discussed since it intersects with the Communal Land Rights Act in this regard. The pending constitutional challenge which relates to this potentially problematic issue, will be discussed. The constitutional challenge of the Act by four communities’ is explored in order to indicate just how potentially problematic the institution of traditional leadership could be. vi This study also discusses and analyses the compromise contained in the Act, regarding the registration of the land title of a community and the registration of “new order rights” in the name of individuals. In this context the impact of this process on the efficacy on the current Deeds registration system is investigated. The Ministerial determination and its constitutional implications is yet another issue, examined in this study. All of these issues will have a negative impact on the implementation of the Communal Land Rights Act and especially on achieving tenure security.
- ItemA comparative analysis of the content of parental responsibilities and rights during the "sex alteration decisionmaking process" of intersexed infants(Stellenbosch : Stellenbosch University, 2021-03) Thompson, Sabrina; Mills, L.; Stellenbosch University. Faculty of Law. Dept. of Private Law.Thesis (LLM)--Stellenbosch University, 2021.
- ItemA comparative evaluation of the judicial discretion to refuse specific performance(Stellenbosch : Stellenbosch University, 2014-12) Van der Merwe, Su-Anne; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: This thesis examines the contractual remedy of specific performance in South African law. It looks closely and critically at the discretionary power of the courts to refuse to order specific performance. The focus is on the considerations relevant to the exercise of the judicial discretion. First, it emphasises the tension between the right and the discretion. It is argued that it is problematical for our courts to refuse to order specific performance in the exercise of their discretion. The underlying difficulty is that the discretion of the court to refuse specific performance is fundamentally in conflict with the supposed right of the plaintiff to claim specific performance. The thesis investigates the tenability of this open-ended discretionary approach to the availability of specific performance as a remedy for breach of contract. To this end, the thesis examines less complex, more streamlined approaches embodied in different international instruments. Comparison between different legal systems is also used in order to highlight particular problems in the South African approach, and to see whether a better solution may be borrowed from elsewhere. An investigation of the availability of this remedy in other legal systems and international instruments reveals that the South African approach is incoherent and unduly complex. In order to illustrate this point, the thesis examines four of the grounds on which our courts have refused to order specific performance. In the first two instances, namely, when damages provide adequate relief, and when it will be difficult for the court to oversee the execution of the order, we see that the courts gradually attach less or even no weight to these factors when deciding whether or not to order specific performance. In the third instance, namely, personal service contracts, the courts have at times been willing to grant specific performance, but have also refused it in respect of highly personal obligations, which is understandable insofar as the law wishes to avoid forced labour and sub-standard performances. The analysis of the fourth example, namely, undue hardship, demonstrates that the courts continue to take account of the interests of defendants and third parties when deciding whether or not to order specific performance. This study found that there are certain circumstances in which the courts invariably refuse to order specific performance and where the discretionary power that courts have to refuse specific performance is actually illusory. It is argued that our law relating to specific performance could be discredited if this reality is not reflected in legal doctrine. Given this prospect, possible solutions to the problem are evaluated, and an argument is made in favour of a simpler concrete approach that recognises more clearly-defined rules with regard to when specific performance should be refused in order to provide coherency and certainty in the law. This study concludes that a limited right to be awarded specific performance may be preferable to a right which is subject to an open-ended discretion to refuse it, and that an exception-based approach could provide a basis for the simplification of our law governing specific performance of contracts.
- ItemComparative perspectives on the role of the trustees and the managing agent as dramatis personae in the governance of sectional title schemes in South Africa(Stellenbosch : Stellenbosch University, 2016-03) Durham, Carryn Melissa; Van der Merwe, Cornelius Gerhardus; Stellenbosch University. Faculty of Law. Department of Private LawENGLISH ABSTRACT : Ownership of affordable housing is made possible through the concept of sectional title, which maximizes the number of available homes per square meter and makes optimum use of available land. The utilization of sectional title schemes to provide housing to a broader base of South Africans would only be successful if schemes are provided with an efficient management structure. Besides the general meeting, the two most important dramatis personae in the management of sectional title schemes are the trustees and the managing agent. This thesis will focus on the role played by these administrators in the governance of sectional title schemes. The discussion will commence with an exposition of the legal status of both these role players followed by an examination of the reasons for their election and appointment to perform the day-to-day management functions of the body corporate. In order for these role players to carry out their functions effectively they need to be suitably qualified and should have the personal qualities required to execute the task. Furthermore, the role players should be properly elected or appointed to their positions by established administrative procedures. The powers, functions and duties of the trustees and the managing agent must be clearly defined with the minimum overlap between their tasks to ensure certainty, and to avoid a situation where a certain function is either not performed at all, or where a single function is performed by two or more of the role players. Due to the fact that these role players should be held accountable for abuses or negligence in the performance of their functions, the fiduciary position and instances of indemnification of trustees for negligent execution of their duties will then be dealt with. This will be followed by an examination of the remuneration payable to trustees and managing agents and their claims for expenses incurred in the performance of their functions. Finally, the terms of appointment of the managing agent will be scrutinized and the circumstances in which his appointment and the office of trustees may be terminated will be placed on the table. The thesis will regularly identify particular deficiencies in the Sectional Titles Act 95 of 1986 and the prescribed management rules relating to trustees and managing agents. Where appropriate and practicable, reference will be made to the manner in which New South Wales, Singapore, Malaysia, China and Germany deal with particular shortcomings. The aim is to search for potentially more appropriate solutions to iron out such problems, and thereby to regulate the governance of sectional title schemes in South Africa more effectively. Where a sectional title scheme faces financial ruin or experiences flagrant managerial mismanagement, the Sectional Titles Act provides for the appointment of an administrator. This measure of last resort should be avoided by ensuring that properly elected, qualified and accountable managerial role players administer the scheme. Therefore, I propose that the Sectional Titles Act 95 of 1986 (or rather the future Sectional Titles Schemes Management Act 8 of 2011) should be amended to make provision for the mandatory appointment of a professional manager as the sole executive organ of the body corporate assisted by an elected board of trustees consisting of sectional owners, and who act merely in a advisory capacity. The status of the managing agent would be elevated to that of an executive organ of the body corporate. This will mean greater responsibilities for the managing agent, but would result in more efficient management of South African sectional title schemes.
- ItemThe consequences of contracts concluded by unassisted minors : a comparative evaluation(Stellenbosch : Stellenbosch University, 2012-12) Watt, Ilze Jr; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: It is a general principle of the law of South Africa that an unassisted contract of a minor is unenforceable against the minor. Although it binds the other party, the minor is not bound. The minor will only be bound if the contract is enforced by his guardian, or if the contract is ratified by the child after attaining majority. This implies that the other party is in a rather unfortunate position, since the effectiveness of the contract will remain uncertain until the guardian of the minor decides to enforce or repudiate the contract, or until the minor ratifies it after attaining majority. The other party may not resile from the contract during this interim period. Should it be established that the contract has failed, the question arises to what extent the parties are obliged to return performances made in purported fulfilment of the contract. In terms of the law of South Africa, the prevailing view is that these claims are based on unjustified enrichment. However, the extent of these claims differs. In principle, both parties’ liability will be limited to the amount remaining in its estate, according to the defence of loss of enrichment. But the application of the defence is subject to an exception that does not apply equally to the parties. Had the other party known or should the other party have known that the enrichment was sine causa, yet continued to part with it, he will be held liable for the full enrichment. However, this exception does not apply to the enrichment liability of minors. In other words, whether the minor knew or should have known that the enrichment was sine causa, he would still be allowed to raise the defence of loss of enrichment. Furthermore, the rules applicable to minors’ enrichment liability applies to all minors, and no scope is left to consider the specific circumstances of each minor. It is accepted that there are two competing principles relating to minors’ unassisted contracts. On the one hand, the law must protect the minor from his immaturity and lack of experience. On the other hand, the law must protect the interests of the other party. It will be seen throughout this study that the determination of how to balance these competing principles is not an easy task. The key aim of this thesis is to investigate the principles governing the unwinding of unassisted minors’ contracts in South Africa. A comparison will be made with the principles applied in other legal systems, in order to identify similarities and differences in the approaches and, to establish what underlies the differences in the various approaches. Germany, England and Scotland have been chosen for comparison for various reasons. First, they share some historical roots, and they represent three major legal traditions, namely the civil law, common law and mixed legal systems, of which South Africa also forms part. Secondly, both England and Scotland have experienced recent legislative reform in this regard, which implies that their respective legal systems should be in line with modern tendencies, and consequently they may provide a valuable framework for possible reform in South Africa. In Germany, although mainly regulated by rather older legislation, there have been interesting developments in the determination of consequences of failed contracts. Hellwege has argued that the unwinding of all contracts should be treated similarly, regardless of the unwinding factor. He has also suggested that in order to prevent the accumulation of risk on one party, and to ensure that the risk is placed on the person who is in control of the object, the defence of loss of enrichment should not be available to any party. His reasoning and suggestions is dealt with in more detail in this thesis. This study argues that the current strict approach applied under South African law regarding minors’ unassisted contracts needs to be re-considered. The current approach is dated and is not in line with modern tendencies and legislation. No proper consideration is given to minors’ development into adulthood or personal circumstances of the parties. It is submitted that in the process of re-consideration, some form of acknowledgement must be given to minors’ development towards mature adults. It is submitted that this would be possible by introducing a more flexible approach to regulate the enforceability and unwinding of minors’ unassisted contracts.
- ItemConsidering the best interests of the child when marketing food to children: an analysis of the South African regulatory framework(Stellenbosch : Stellenbosch University, 2016-12) Mills, Lize; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private LawENGLISH ABSTRACT : This thesis seeks to establish whether the South African government fulfils its international and constitutional obligations by applying the standard of the best interests of the child when food-marketing practices to children are employed. According to the World Health Organisation, overweight and obesity ranks as the fifth leading risk for death globally. It is therefore of particular concern to note that the WHO reports that in 2013 more than 42 million children under the age of five were overweight or obese. Although the reasons for the tremendous increase in global obesity rates can be complex and a number of factors contribute to the associated rise in noncommunicable diseases, research has shown that the heavy marketing of fast food and energy-dense, micronutrient-poor foods and beverages is a probable causal factor in weight gain and obesity. It has been established and accepted that there is a relationship between the marketing of food and children’s dietary choices and consumption. Moreover, studies from all over the world show that the foods which are most often marketed to children, are foods which are nutritionally poor and which contain high levels of salt, sugar and fat. Consequently, the WHO and other bodies have called for a restriction to be placed on the marketing of nutritionally poor foods to children. This thesis entails a discussion and an analysis of South Africa’s response to this call. It describes and assesses this country’s regulatory efforts regarding the marketing of food to children, comparing it to standards set by both international law and methods of regulation in other jurisdictions. The aim of the thesis is to assess the implementation of South Africa’s international and constitutional obligations in this respect, focussing in particular on the duty to regard the best interests of children as a matter of paramount importance and primary concern. The concept of the best interests of the child has been firmly entrenched in international law, the South African Constitution and South African legislation and jurisprudence. Since the Committee on the Rights of the Child has confirmed that the best interests of the child is a substantive right of itself, while also being a rule of procedure and a method of interpretation, it is also true that the implementation of this right may have an effect on other fundamental rights and freedoms. The thesis provides some suggestions as to how to achieve a proportional balance between the best interests of the child and the rights of the food and media industries, and of parents in South Africa, whilst bearing in mind that children’s interests are more important than anything else.
- ItemA critical analysis of State responsibility to internally displaced children in Africa(Stellenbosch : Stellenbosch University, 2018-12) Fawole, Charissa Esther; Human, C. S.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT : The issue of international forced migration has received much international attention of late, but the problem begins much closer to home. Internal displacement is a type of forced migration, which occurs within a State’s boundaries. Internally displaced persons (“IDPs”) outnumber refugees at least two to one. Africa is a continent with the largest number of IDPs. Another daunting reality is that a least half of all IDPs in children. Therefore, internally displaced children in Africa are a group of children that warrant special consideration. Internally displaced children can be described as persons under the age of 18 years who are forced to leave their place of habitual residence but do not cross an international border. For this reason, the State in which they are displaced has the primary responsibility for their protection and assistance. Situations of internal displacement present several risks to the physical security, basic needs, social, economic and cultural rights and the civil and political rights of internally displaced children. This thesis, therefore, examines the legal obligations that States have to internally displaced children. As a supplementary research question, it will examine the most effective means to hold States accountable for their obligations to internally displaced children. To determine the obligations that State have to internally displaced children this thesis includes a critical analysis of the key instruments that govern children’s rights law and the law on internal displacement that are applicable to internally displaced children in Africa. The instruments critically analysed in this thesis are the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the United Nations Guiding Principles on Internal Displacement, the International Conference on the Great Lakes Region’s Protocol on the Protection and Assistance of Internally Displaced Persons and the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). A children’s rights perspective is the theoretical lens that used to critically analyse these instruments. The critical of the analysis of the key instruments demonstrates that the law, in theory, responds to the majority of the risks, rights and needs of internally displaced children. To address the secondary research question, the thesis examines the principle of accountability, the concept of sovereignty as responsibility, accountability mechanisms, the role of non-governmental organisations and practical steps for that facilitate State compliance with their obligations. Case studies of Uganda, the Central African Republic, Nigeria and Sudan provide context to the study and provide an opportunity to examine the steps for the practical implementation of State obligations to internally displaced children, which supports accountability. The thesis concludes with recommendations and framework from a children’s rights perspective that have the potential to improve the protection and assistance of internally displaced children and encourage States to comply with their obligations to this group of children. The recommendations and framework combine the theoretical aspects provided by a critical analysis of the law with practical steps that operationalise accountability with a focus on internally displaced children.
- ItemA critical analysis of the financial and social obligations imposed on sectional owners in sectional title schemes, as well as their enforcement(Stellenbosch : Stellenbosch University, 2014-04) Booysen, Juann; Van der Merwe , C. G.; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT: Over the years sectional ownership satisfied the psychological need of many South Africans to acquire home-ownership and it is currently estimated that there are more than 780 000 sectional title units throughout South Africa. The concept of sectional ownership consists of three elements, namely individual ownership of a section (residential or commercial); joint ownership of the common parts of the sectional title scheme and membership of the body corporate which governs the sectional title community. Sectional ownership is therefore a unique statutory institution with its own characteristics. An imperative of every sectional title scheme is to strive for financial stability, happiness and harmony in an intensified, diverse community where the objects of ownership, the individual units, are physically interdependent. The Sectional Titles Act 95 of 1986, as amended, therefore imposes numerous financial and social obligations on sectional owners. These obligations require each owner to give up a certain degree of freedom that he might otherwise enjoy in separate, privately owned property. Ultimately the success of a sectional title scheme will depend upon the necessary co-operation and support of its members for compliance with these obligations. Since non-compliance can destroy the financial stability and social harmony in a sectional title scheme, effective procedures for the enforcement of these financial and social obligations are essential. Accordingly, effective sanctions are a sine qua non for a financially viable and socially successful sectional title scheme. This thesis provides a critical analysis of the various financial and social obligations that are imposed on sectional owners, as well as the measures available for their enforcement. It will become evident that the sanctions in the South African sectional title legislation for non-compliance with these obligations are conspicuously few and far between. It is generally accepted that the Sectional Titles Act 95 of 1986 does not have sharp enough „teeth‟ to deal effectively with the non-compliance of these obligations. Consequently, the thesis will also focus on sanctions that are used in foreign jurisdictions to enforce sectional owners‟ financial and social obligations, with the aim to identify sanctions that may be adopted in the South African context to render the enforcement of these obligations more efficient and effective. In conclusion it will be recommended that the only manner in which financial stability and social harmony can be restored in a troubled sectional title scheme is to introduce legislation which allows the body corporate as a last resort to exclude a persistent offender who makes it impossible for the other sectional owners to share the sectional owners‟ community with him or her temporarily from this community.
- ItemDetermining the consequences of illegal contracts(Stellenbosch : Stellenbosch University, 2022-03) Botha, Ferdinand Marthinus; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: This thesis investigates the consequences of illegal contracts from a comparative perspective. Illegality usually raises two questions: to what extent may the contract still be enforced and under what circumstances may a plaintiff recover a performance rendered under the contract. When confronted with these questions, South African courts typically resort to constructs such as the maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis. These maxims respectively express the propositions that an illegal contract may not be enforced and that a plaintiff who is tainted by illegality may not obtain restitution of any performance rendered under the contract. The problem with these maxims is that they tend to divert attention away from other policy considerations that may also be important. In addition, it is not clear why South African courts find illegal contracts to be void in some cases and valid but unenforceable in others. In search of a more convincing approach to illegal contracts, the thesis therefore investigates how foreign jurisdictions determine the consequences of illegality. The comparative overview reveals that foreign jurisdictions generally aim to give effect to the same kind of policies when determining the consequences of illegality, although they employ different methods. Some apply strict rules with a limited number of exceptions while others give courts a discretion to determine the consequences in a particular case with reference to a list of policy considerations. These policy considerations are studied in more detail by analysing three particularly challenging scenarios from a comparative perspective – illegal consumer loans, illegal employment contracts and illegal work performed by contractors in the construction industry. From these analyses the thesis concludes by developing several claims. The first claim is that the solution to any illegality problem ultimately amounts to a balancing of various factors, irrespective of whether the illegality derives from legislation or public policy. Second, it is argued that the most satisfactory method for determining the consequences of illegal contracts is to give courts a discretion that must be exercised with reference to a range of policy considerations. And finally, it is concluded that South Africa should discard references to the ex turpi and par delictum maxims and adopt a more flexible approach to determining the consequences of illegality.
- ItemDeveloping a structure for the adjudication of class actions in South Africa(Stellenbosch : Stellenbosch University, 2017-12) Broodryk, Theo; Du Plessis, Jacques; De Vos, WouterENGLISH ABSTRACT : This dissertation is concerned with class actions within the context of South African civil procedural law. There is currently no South African statute or court rule that provides a procedural framework for the institution and regulation of class actions. Our courts have been required to develop the appropriate class action procedural rules using their inherent jurisdiction as entrenched in section 173 of the Constitution of the Republic of South Africa, 1996. This was done in Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae) 2013 1 All SA 648 (SCA), which effectively details key aspects of the law relating to class actions in South Africa. However, various ambiguities, inconsistencies and problems remain. In this regard, South African case law on class action procedure has not yet been subjected to a comprehensive and critical analysis in order to provide answers to a number of vital questions. These include the following: i) when is a class action, as opposed to joinder, the appropriate procedural device to beutilised to adjudicate a claim and when is it appropriate to use the opt-in, as opposedto the opt-out, class action regime? , ii) when, if ever, should notice of a class action be given to class members and whenwould individual notice to each class member be required, or would some form ofgeneral notice to the class suffice?; iii) what is the approach that our courts should follow and what are the devices that theycould utilise to determine damages in personal injury class actions?; and, iv) how should a class action be managed and what should the role of the courts be inthis regard? Ultimately, the purpose of the dissertation is to assist in developing a structure that could facilitate the adjudication of class actions in South Africa. This inevitably entails interpreting the South African class action procedure as expounded by our courts and, given the novelty of the procedure, constantly seeking guidance from the class action regimes of prominent foreign jurisdictions, most notably Australia, Ontario and the United States.
- ItemDeveloping the South African law of delict: the creation of a statutory compensation fund for crime victims(Stellenbosch : Stellenbosch University, 2018-03) Wessels, Albertus Bernardus; Loubser, Max; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.ENGLISH ABSTRACT : The dissertation evaluates the compensatory relief South African law currently provides to victims of crime. To obtain compensation for the harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate the victim’s harm, crime victims frequently frame actions against the state, not only on the basis of vicarious liability for positive wrongdoing by state employees, but increasingly on the basis of failure by the state or its employees to prevent crime. This dissertation describes the expanding delictual liability of the state for harm caused by crime and concludes that this development of the law of delict is both theoretically and practically undesirable. The dissertation further argues that the existing statutory mechanisms to claim compensation for harm arising from crime is unsatisfactory and provides little assistance to crime victims. Within this framework the dissertation considers whether there is an alternative method to secure compensation for the hundreds of thousands of South Africans who fall victim to crime each year. The most common solution adopted in foreign jurisdictions is the establishment of a statutory compensation fund for crime victims. The dissertation seeks to establish whether the legislative reform of the South African law of delict through the creation of such a fund is justified and appropriate. To do so, the dissertation analyses the historical background and policy bases of other significant instances of legislative reform of the South African law of delict. In the process, a general theoretical framework is developed that may provide an outline for statutory reform of the law of delict to provide compensation for specific categories of victims. The dissertation thereafter examines whether the establishment of a statutory crime victim compensation fund could fit within this proposed theoretical framework. It is concluded that the proposed fund is justifiable and, when compared to the solutions offered by the current developments within the common-law of delict and existing legislation, it seems, in principle, to be a more desirable solution to improve the legal position regarding compensation of crime victims. To be successful, the proposed statutory compensation scheme must be theoretically sound and practically workable. The dissertation therefore concludes by focusing on several practical questions and considerations which the South African legislature should take into account, if it were to enact such a scheme.
- ItemThe doctrine of notice in property law(Stellenbosch : Stellenbosch University, 2020-03) Siphuma, Nzumbululo Silas; Van der Merwe, C. G.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Since its reception in the 1880s, the doctrine of notice has caused many controversies in South African private law. The doctrine provides that if an acquirer of ownership was aware or foresaw the possibility of the existence of a prior personal right aimed at acquisition of ownership over the land when he or she accepted transfer (by registration), the holder of a prior personal right is entitled to have the sale and the subsequent transfer set aside, and have registration of ownership effected in his or her name. In case of an unregistered limited real right, the grantee is entitled to compel the subsequent owner to cooperate in the registration of the limited real right in the land in the deed office in his or her favour. This outcome appears to conflict with several basic principles of South African private law. Consequently, the doctrine of notice has caused several doctrinal problems in both the South African system of property law and in the basics of the South African law of contract. Early South African case law and academic literature show that discourse regarding the doctrine of notice was centered on its doctrinal bases and scope of application. As a result, various doctrinal bases were developed in case law and academic literature in an attempt to justify and explain why under the doctrine a prior weaker personal right trumps a subsequent stronger real right. The main doctrinal bases advanced are equity, delictual liability, fraud, wrongfulness and fiction or recognition that the doctrine is an anomaly. However, recent case law and academic discourse has shown that there is a distinct lack of judicial and academic consensus regarding the doctrine’s dogmatic basis. The absence of clear doctrinal basis caused considerable ambiguity regarding the true scope of application of the doctrine of notice. Pertinently, the question is whether the doctrine should only protect prior personal rights to acquire real rights (iura in personam ad rem adquirendam) or should be extended to protect other rights, including rights that are purely personal in nature. Accordingly, this dissertation examines the doctrinal basis, scope and application of the common law doctrine of notice in South African property law. Drawing from the insights gained from scrutinising the two most recent comparative contributions, I conclude that explanations in terms of the derivative acquisition model and fraud in its modern appearance as mala fides are the two most persuasive bases for the doctrine because they demonstrate that the doctrine is rooted in South African property law. Furthermore, the dissertation concludes that the doctrine should not be extended to the scenarios of sales in execution, options, rights of pre-emption, sales subject to approval by a third person, and other rights purely personal in nature, since these right operates outside of the two-stage derivative acquisition model. Therefore, the application of the doctrine should be restricted to the classic scenarios of double and successive sales, and personal rights which will become real on registration (iura in personam ad rem adquirendam) acquired by the prior purchaser or grantee of certain limited real rights because holders of these rights are operating within the domain of the two-stage derivative acquisition model.
- ItemThe effect of the acquisition of parental responsibilities and rights on the realisation of the right to parental care of children born to unmarried parents(Stellenbosch : Stellenbosch University, 2020-03) Rutgers, Joshua Leon; Horsten, Debbie; Johnson, Ebrezia; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: Section 28(1)(b) of the Constitution guarantees every child the right to parental care. It is this right that forms the basis of the research. The content of the right to parental care in South African law is considered in order to identify the persons responsible for the realisation of this right, as well as to highlight what such right entails. The thesis also considers the content of the right to parental care in terms of international law, as the international law position arguably informs South Africa’s interpretation of the right to parental care. The primary aim of this thesis is to determine whether South African civil, customary and/or Muslin personal law limit the right to parental care of children born to unmarried parents. In order to determine this, the rules regulating the acquisition of parental responsibilities and rights are considered, as it is the exercise of such responsibilities and rights that ensures that the child’s right to parental care is realised. Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. Such matters include the child’s right to parental care and the acquisition of parental responsibilities and rights. The right to parental care must, therefore, be interpreted in light of section 28(2) of the Constitution, resulting in the child being entitled to parental care that is in his or her best interests. This thesis, therefore, further aims to determine whether the manner in which the legal systems under consideration regulate the acquisition of parental responsibilities and rights is in the best interests of children born to unmarried parents. It is argued that the failure of South African civil, customary and Muslim personal law to allow both unmarried biological parents to acquire parental responsibilities and rights automatically, limits the right to parental care of children born to unmarried parents, is not in accordance with the best interests of those children, and unfairly discriminates against such children. It is contended that both biological parents should automatically acquire parental responsibilities and rights, without qualification, and that such responsibilities and rights should only be interfered with if they are exercised in a manner which is contrary to the best interests of the child.
- ItemEfficacy of the Spatial and Land Use Management Act in the promotion of spatial justice in an urban land reform context(Stellenbosch : Stellenbosch University, 2020-03) Swanepoel, Sonja; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.ENGLISH ABSTRACT: The spatial legacy of colonialism and apartheid is clearly still intact. Problems of poverty and marginalisation are especially prevalent in informal settlements in South Africa, which showcase the immense spatial disparity so in need of redress. Due to a lack of intergovernmental cooperation as well as insufficient investment in housing and infrastructure, the inherent inequalities in urban areas are being reproduced. Other issues relate to a lack of inclusion, specifically as it relates to participation in decision-making. Although all racially-based land measures were already repealed in 1991 and even though apartheid had officially ended by 1994, bringing about major changes in policy and legislation, with a new corresponding focus on the protection of human rights, specific attention was not given to the deep-rooted problems related to spatial patterns. For these reasons it is necessary to evaluate whether existing policies and statutes aimed at promoting urban spatial transformation and spatial justice are effective. In this regard, the focus shifts to the Spatial Planning and Land Use Management Act 16 of 2013 (“SPLUMA”), a planning framework Act. The main research question is accordingly whether SPLUMA, in its current form, is able to promote spatial justice in an urban land reform context, specifically in informal settlements, with reference to sections 25(5) and 25(6) of the Constitution of the Republic of South Africa, 1996 (the “Constitution”), pertaining to the promotion of access to land and improving tenure security, respectively. In this study it was found that SPLUMA does indeed, although to a very limited extent, promote spatial justice in the context of the particular constitutional imperatives contained in sections 25(5) and 25(6) of the Constitution. Essentially, SPLUMA is a planning tool and not inherently aimed at promoting land reform. Yet, because of the very specific touching points between SPLUMA and sections 25(5) and 25(6) of the Constitution, with some adjustment and with more emphasis on particular tools in SPLUMA, the efficacy of SPLUMA in its endeavour to promote spatial justice can and must be improved.
- ItemEinde van lewe besluite ten opsigte van defektiewe babas : 'n juridiese perspektief(Stellenbosch : University of Stellenbosch, 2006.12) Rossouw, Elzaan; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.End of life decisions regarding defective babies raise several controversial questions. The root of the problem in withdrawing or withholding life-sustaining treatment from defective babies lies in the conflict between human emotions, technological advancements and legal considerations. As a result of advances in medical science and neonatal technology, the lives of defective babies can often be saved or indefinitely prolonged. The question has become not whether we can treat these babies, but rather whether we should. Whether or not a defective baby’s life must be prolonged raises serious moral and ethical issues. A life compromised by severe physical and mental handicaps is weighed against an early and painless death. The best interest of the baby is the primary consideration from a legal point of view. Various factors must be taken into account to give content to this concept. Another central question is to determine who the decision maker(s) should be and what weight should be given to their opinions. Due to the fact that defective babies can not participate in this decision making process or communicate their wishes and preferences, surrogate decision makers must decide on their behalf. In sharp contrast to England, America and Canada, there is hardly any literature and no reported case law in South Africa to demonstrate the complexity of end of life decisions regarding defective babies. Selective non-treatment of defective babies have received little attention in the South African law. The Bill of Rights, inspired by regional and international Conventions determine the framework from a juristic perspective wherein decisions must be made and justified. This framework requires that the focus must be on the most vulnerable and dependant, namely the defective baby.
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