Masters Degrees (Private Law)

Permanent URI for this collection

https://scholar.sun.ac.za/handle/10019.1/3637

Browse

Now showing 1 - 20 of 31

An 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.
A 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.
Communal 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.
A 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.
A comparative study of black rural women's tenure security in South Africa and Namibia
(Stellenbosch : Stellenbosch University, 2012-12) Kamkuemah, Anna Ndaadhomagano; Pienaar, Juanita M.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The South African land question presents complex legal and social challenges. The legal aspects of land are inextricably linked to other socio-economic aspects, such as access to housing, healthcare, water and social security. The Constitution provides for land reform in the property clause - section 25. This clause, while seeking to redress the colonial land dispossessions, by means of a tripartite land reform programme, also protects the property rights of all. The different legs of the land reform programme are redistribution, which is aimed at enabling citizens to access land on an equitable basis; restitution, which sets out to restore property rights or grant equitable redress to those dispossessed of land as a result of past racially discriminatory laws or practices and finally tenure reform. Tenure reform is premised on transforming the landholding system of those with legally insecure tenure as a result of past racially discriminatory laws or practices or granting comparable redress. The primary focus of this thesis is on tenure security for black rural women in South Africa, while using the Namibian experience with regard of the same group as a comparison. Historically, before colonialism, landholding was governed by the customary law of the various tribes in South Africa. This landholding system underwent extensive change through the colonial era that ultimately led to a fragmented and disproportionate distribution of land based on race, with insecure land rights particularly in rural areas, where women are the majority. With the dawn of the Constitutional era, South Africa embarked upon a social justice project, based on a supreme Constitution, embodying human dignity, equality, non-racialism, accountability and the rule of law. Land reform forms part of the social project and is governed by the Constitution and influenced by both the civil and customary law. With the South African tenure context, policy documents, legislation and case law will be analysed. In this process the role of the stakeholders and other related factors, for example customary practices are also considered. The analysis indicates that case law has played a significant part in addressing women’s plight with regard to equality, tenure reform and abolishing suppressive legislative provisions and practices. It is furthermore clear that the different categories of women are affected differently by the overarching tenure and other related measures. For a legal comparative study, Namibia was chosen for the following reasons: (a) both South Africa and Namibia have a shared colonial and apartheid background; (b) both countries have a Constitutional foundation incorporating human rights and equality; and (c) both countries have embarked on land reform programmes. However, contrary to the South African position, both the Namibian Constitution and its National Land Policy are more gender-specific. Tenure reform is an on-going process in Namibia in terms of which specific categories of women have benefitted lately. To that end the gender inclined approach may be of specific value for the South African situation, in general, but in particular concerning black rural women. Consequently, particular recommendations, linked to the specific categories of women, are finally provided for the South African position, in light of the Namibian experience.
The 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.
A critical analysis of the role of the developer in sectional title developments
(Juta Law, 2008-01) Van Schalkwyk, C. L.; Van der Merwe, C. G.
The introduction of sectional titles in South Africa has opened the door for developers to explore new opportunities in property development and to reap considerable profits in the expanded real estate market. Since sectional title developments can comprise residential units, offices, shops, commercial and industrial units and especially mixed schemes, the opportunities are endless. The developer plays an essential role in the creation process of a new sectional title scheme. Much of the success of a development depends on his performance during these initial stages. Sectional title legislation has to curb developer abuses and protect purchasers and sectional owners against malpractices. However, these measures should aim to balance in an equitable fashion the interests of all the parties concerned.
Determining 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.
The 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.
Efficacy 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.
Einde 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.
The fair price rule and the South African law of contract: A historical and comparative analysis
(Stellenbosch : Stellenbosch University, 2018-12) Visser, Wiaan; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis focuses on legal rules that allow a court to set aside or modify a contract on the basis of a large discrepancy in the value of the respective performances. These “fair price” or “just price” rules have been the object of debate and disagreement among jurists for centuries. Although one such a rule previously formed part of the South African common law of contract, the prevailing view is that the price does not have to be fair or reasonable for a contract to be valid. However, due to changing attitudes to price control both locally and internationally, this view might require reconsideration. To this end, the study traces the treatment of fair price rules historically and comparatively, and thereafter evaluates the application of these rules in the South African context by taking account of certain underlying values and principles of the law of contract. The historical overview studies the development of the fair price rule from its origins in late classical Roman law to its reception and subsequent abolition in modern law. The overview shows that jurists during the Middle Ages had a well thought-out understanding of the fair price rule as a doctrine aimed at enforcing a market-oriented just price in order to avoid the exploitation of weakness, price discrimination, fraud, and exceptionally harsh bargains. The comparative overview in turn shows that while a variety of different approaches to dealing with substantively unfair prices exist, there are signs of an increased willingness to engage in price control. It is also evident that more modern fair price rules follow a flexible approach to the determination of whether the price is fair. This approach does not only take account of the objective disparity in the value of the respective contractual performances, but also of the procedural fairness of the conclusion of the contract. These modern fair price rules follow a similarly flexible approach to restitution, by investing the court with the discretion to adapt the contract price, or to avoid the contract and award damages to the disadvantaged party. Building on the comparative and historical analysis, the thesis concludes that it would be both desirable and suitable that a modern fair price rule, which follows a flexible approach to the determination of fairness, should be introduced into South African common law of contract. This can be achieved through the development of the common-law rule that contracts may not be contrary to public policy. It is argued that this will lead to a law of contract that is better equipped to provide relief to prejudiced contracting parties, and that gives greater effect to a number of fundamental values of our law of contract, such as dignity, party autonomy, good faith, and Ubuntu.
Fundamental change of circumstances and the principle of 'causa finalis'
(Stellenbosch : Stellenbosch University, 2001-12) Von Alvensleben, Philipp Carl; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: On the basis of a comparative analysis of the case law in Germany, England and South Africa dealing with fundamental change of circumstances, it is submitted that the underlying principle of this problem area is the idea of frustration of the contractual purpose (causa finalis). The problem of fundamental change of circumstances is directly connected with basic issues of legal theory such as the dichotomy between legal certainty and substantive justice, the role and limits of interpretation, the concretisation of principles, the adjudication of interests and the problem of value-judgements in the law which are of immediate influence on the understanding of the problem by judges and legal commentators. A broad perspective on the topic is necessarily indicated hereby. The thesis therefore starts off with an account of the role of purpose (causa finalis) in the history of legal philosophy, with a focus on developments in Germany. The continuing relevance of Aristotelian-Thomistic legal thinking is emphasized. The German and English case law dealing with fundamental change of circumstances is analyzed in an analogous manner. An account of the history and development of the doctrines dealing specifically with fundamental change of circumstances is given: the clausuIa rebus sic stantibus of the ius commune, the doctrine of WegJall der Geschaftsgrundlage in Germany and the doctrine of frustration of contract and common mistake in England. The crucial elements of the approach of the courts are restated. The positions of the two most influential German legal authors involved on opposite sides of the debate concerning the doctrine of WegJall der Geschaftsgrundlage are discussed. At the end of the discussion of English case law, the approach of the English courts is compared with that of their German counterparts, providing a basis for the development of the author's understanding of the concept causafinalis. Notwithstanding the fact that South African law does not recognize a doctrine dealing specifically with fundamental change of circumstances, and in spite of dicta to the effect that the English doctrine of frustration of contract is not part of South African law, it is submitted that the doctrine of frustration of contract has nevertheless strongly influenced the South African law of supervening impossibility and supposition, and has arguably become part and parcel of it. Likewise, cases of frustration of the contractual purpose due to a fundamental change of circumstances have been dealt with by means of other doctrinal devices such as common mistake. It is submitted, finally, that the famous and controversial issue of the role of causa in South African law should be reconsidered, since it may contribute to the understanding of the notion of contract, and assist in overcoming the current doctrinal crisis of the theory of contract.
The implementation of court orders in respect of socio-economic rights in South Africa
(Stellenbosch : Stellenbosch University, 2003-12) Ntlama, Nomthandazo Patience; De Waal, H. J.; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT: In recognition of the socio-economic imbalances inherited from the past and the abject poverty experienced by many, the people of South Africa adopted a Constitution fully committed to protecting socio-economic rights and advancing social justice. Apartheid constituted a violation of every internationally recognised human right. Seen in this light the emphasis on socio-economic rights in the new South African Constitution represents a commitment to guarantee to everyone in society a certain minimum standard of living below which they will not be allowed to fall. As the Constitution recognises socio-economic rights as justiciable rights, they can be of assistance to those who are unable to support themselves when challenging the state for the non-delivery of basic services. The duty to deliver the services lies first with the state and the court becomes involved only once it is alleged that the state has failed to fulfil its duty. The primary purpose of the study is aimed at determining the effectiveness of the South African Human Rights Commission in monitoring court orders in respect of the implementation of socio-economic rights. Non-Governmental Organisations, involved in the promotion and protection of human rights including socio-economic rights, cannot be left out of the process. It is argued that where the Courts issue structural interdicts, which have of late been used by them, albeit not enough in the context of socio-economic rights, they are responsible for the implementation of such orders. It is also argued that the South African Human Rights Commission and NGOs must be enjoined to ensure that court orders are better implemented. Court orders in respect of socio-economic rights in almost all the cases to date were neither implemented nor monitored adequately.
Mediation and rule 41A : developing an appropriate court-annexed mediation framework
(Stellenbosch : Stellenbosch University, 2023-12) Opperman, Emile Willem; Broodryk, Theo; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT : This dissertation is concerned with Rule 41A of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (“High Court Rules”) which recently introduced mediation as a preliminary step in the high court litigation process. Specifically, the focus is on critiquing Rule 41A, as it does not provide a proper framework for court-annexed mediation in its current form.
Misrepresentation by non-disclosure in South African law
(Stellenbosch : Stellenbosch University, 2013-03) Cupido, Robin Vicky; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: This thesis investigates the approach to non-disclosure as a form of misrepresentation in South African law. The primary focus is the question of liability, and whether parties should be able to claim relief based on non-disclosure. In order to determine this, attention is also paid to the standards which have traditionally been employed in cases of non-disclosure, and it is questioned whether a general test can be formulated which could be used in all such instances. The point of departure in this discussion is a general historical and comparative overview of the law relating to non-disclosure. This overview places the position in modern South African law in context, and highlights some of the similarities between our current position regarding non-disclosure and the position in other jurisdictions. The overview also sets out the provisions relating to non-disclosure in international legal instruments, which could be of use in interpreting concepts used in our law. The study then shifts to an exploration of the specific situations, such as the conclusion of insurance agreements, or agreements of sale involving latent defects, where South African law automatically imposes a duty of disclosure. These instances are the exception to the general rule against imposing duties of disclosure on contracting parties. The study reveals that certain principles are applied in more than one of these exceptional cases, and attention is paid to each in order to determine which principles are most prevalent. It is suggested that the nature of the relationship between the parties is the underlying reason for always imposing duties of disclosure in these circumstances. Attention is then paid to the judicial development of the law relating to non-disclosure, specifically in those cases which fall outside the recognised special cases referred to above. The remedies available to a party when they have been wronged by another’s non-disclosure are identified and investigated here, namely rescission and damages. A distinction is drawn between the treatment of non-disclosure in the contractual sphere and the approach taken in the law of delict. The different requirements for each remedy are explored and evaluated. A detailed examination of the key judgments relating to non-disclosure shows us that the judiciary apply similar principles to those identified in the discussion of the exceptional instances when deciding to impose liability based on non-disclosure. Reliance is also placed on the standards set out in the earlier historical and comparative discussion. The most prevalent of these standards are the nature of the relationship between the parties and the good faith principle. It is then considered whether all of these principles and elements could be used in order to distill one general standard that could be used to determine whether non-disclosure could give rise to relief. The conclusion is drawn that it may not be advisable to adopt such a standard, and that the seemingly fragmented treatment of non-disclosure in South African law thus far has enabled its development and will continue to do so. A number of key considerations have been identified as possible standards, and these considerations can be applied by the judiciary on a case by case basis.
Omgewingspligtigheid en landelike grondrestitusie
(Stellenbosch : Stellenbosch University, 2024-03) Van Dyk, Frederik Rudolph; Pienaar, Juanita M., 1965-; Stellenbosch University. Faculty of Law. Dept. of Private Law.
AFRIKAANSE OPSOMMING: Die ondersoek in hierdie verhandeling is tweeledig: Eerstens word aangevoer dat die Suid-Afrikaanse grondhervormingsreg ‘n tydvak van dwingende verandering betree het. ‘n Bedeling wat groter skakeling tussen veral grondrestitusie en ander regsbelange behels, word in die vooruitsig gestel. Betreffende grondrestitusie, word ‘n bedeling verwag wat noodsaaklike verpligtinge jeens en verbande met die omgewing sterker benadruk. Daar word hipotetiseer en bewys dat ‘n regsgrondslag hiervoor in die Suid-Afrikaanse Grondwet van 1996 bestaan. ŉ Leerstellige verband tussen die omgewingsmensereg in artikel 24 van die Grondwet en bepaald artikel 25(7), synde die restitusieklousule, kan uit hierdie regsgrondslag afgelei word. Tweedens en op sterkte van die eerste been van die ondersoek, word ‘n studieprotokol ontwerp en uitgevoer ten einde die mate te toets waartoe die bestaande landelike restitusiereg (soos in die Wet op die Herstel van Grondregte 22 van 1994 en in regspraak vervat) omgewingsregtelike belange te pligte te staan. Die eerste been van die ondersoek bou voort op drie leerstellings onderliggend aan die Handves van Menseregte, naamlik niehiërargiese fundamentele regte, die interafhanklikheid van fundamentele regsnorme en die sogenaamde “een regstelsel” beginsel. Hierdie leerstellings lewer die regverdiging op vir ‘n werkbegrip, “omgewingspligtigheid”, wat die mate waartoe ‘n regsbron die omgewing te pligte staan, beskryf. ‘n Afgebakende begrip van omgewingspligtigheid word aangewend om ‘n studieprotokol te ontwerp en te stuur, gebaseer op die “begronde teorie werkswyse”, ‘n metode ontleen uit die kwalitatiewe empiriese regsleer. Die studieprotokol word uitgevoer in drie oorhoofse stappe: Eerstens word ‘n keurstel eerste beginsels, teen die regsteoretiese agtergrond van omgewingspligtigheid, maatstafmatig uit die Nasionale Wet op Omgewingsbestuur 107 van 1998 gekeur. Daarna word die landelike restitusiereg, vernaamlik die Wet op die Herstel van Grondregte 22 van 1994, ontleed en voorlopige koppelvlakke met die omgewingsreg uitgewys. Dan word die omgewingsregtelike keurstel eerste beginsels weer aangewend om konkrete bron-items uit die omgewingswetgewing te lig. Die studie sluit af deur die omgewingsregtelike bron-items te gebruik om die omgewingspligtigheidstoetsing van koppelvlakke uit die landelike restitusiereg mee uit te voer. Daar word bepaal dat die bestaande landelike restitusiereg ‘n betekenisvolle vlak van omgewingspligtigheid openbaar. ŉ Aantal aanbevelings word gemaak ter verbetering van die omgewingspligtigheidsposisie van die landelike restitusiereg. Ten slotte word die Wet op Ruimtelike Beplanning en Grondgebruiksbestuur 16 van 2013 kortliks bespreek as ‘n moontlik bruikbare koppelaarstatuut, waarmee leemtes en losser koppelings tussen die omgewingsreg en landelike restitusiereg tot ‘n beperkte mate aangespreek kan word.
Perspectives on the best interests of the child : developments in the interpretation and application of the principle in the South African law relating to custody
(Stellenbosch : Stellenbosch University, 2004-04) Basson, Lindinette; Human, C. S.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: The Constitution of the Republic of South Africa entrenches the best interests of the child as being of paramount importance in all matters concerning the child. This commitment to the promotion of the welfare of children is not unique to modern South African law, but is an acknowledged principle of the common law and international child law as well. With such well-established recognition the question, which forms the primary focus of this study, arises whether the principle of the best interests of the child is workable and applicable in real life scenarios where the custody of a child has to be decided. The challenge to the application of the principle in this context is to reach a decision that will protect the parent-child relationship regardless of the marital breakdown. The question is whether the principle allows for and creates an honest awareness of and commitment to the welfare of children that influence decisions in this context or whether courts and decision-makers merely pay lip service to it in order to conceal the haphazard way in which custody is awarded. In order to determine the workability and applicability of the principle, it is necessary to know how the principle has evolved in the South African legal context. Through the examination and analysis of existing literature, international conventions, legislation and case law, a number of different perspectives on the developments in the interpretation and application of the principle are provided. These perspectives culminate in the useful and constructive insight and conclusion that the value of the concept is dependant upon the correct approach to the principle and its characteristics. The defining characteristic of the principle of the best interests of the child is its inherent vagueness and indeterminacy. Though this subjects the principle to serious criticism, this study supports the argument that indeterminacy is in fact essential. It ensures not only the flexibility of the concept, rendering it applicable to the time, cultural sphere and social context and unique circumstances of each case it is applied to, but a holistic approach to the child as individual and family as a unit as well. This holistic approach forms the foundation of the lists of criteria in McCall v McCall 1994 (3) SA 201 (C) and the Children's Bill, thereby establishing the workability and value of the principle for fair and just results in all decisions pertaining to the custody of children.
Pre-contractual agreements
(Stellenbosch : Stellenbosch University, 2020-03) Kleinhans, Brittany Lily Evelyn; Myburgh, Franziska; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Dept. of Private Law.
ENGLISH ABSTRACT: As modern commercial transactions become larger and more complex, business professionals have resorted to various instruments or agreements aimed at regulating and progressing the negotiation process. Some of these instruments can even strongly resemble a contract, but are preliminary in form, and as such give rise to uncertainty as to their enforceability. The diverse range of agreements concluded prior to a principal contract, which may be termed pre-contractual agreements, are the focus of critical examination in this thesis. The nature and legal consequences of pre-contractual agreements are both uncertain and controversial. This is in large part due to the fact that the term “precontractual” does not refer to a specific type of agreement with a standardised legal content but rather to the stage at which the agreement is concluded. In this thesis, the various types of pre-contractual agreements are catergorised according to their function so as to establish which of these agreements, if any, meet the validity requirements for a contract and thus give rise to legal consequences. Particular focus is placed on the legal nature and consequences of various types of agreements to negotiate. Due to the limited local case law and academic literature on pre-contractual agreements and the broader topic of pre-contractual liability, comparative observations can form a central component in the formulation of potential solutions to the obstacles presented by these agreements. With the benefit of comparative analysis the conclusion is reached that a sound framework to regulate the precontractual phase can be established through the development of the law of contract to enforce specific types of agreements to negotiate. To analyse all the potential legal consequences arising from pre-contractual agreements comprehensively, the scope of the analysis extends beyond the law of contract to consider the potential remedies that may lie in other sources of law, such as the law of delict and the law of unjustified enrichment. The conclusion is reached that both the law of delict and the law of unjustified enrichment can serve as valuable sources of pre-contractual liability to rectify potential injustices that may arise during the presently unregulated pre-contractual phase.
Price adaptation and the requirement of certainty with specific reference to the contract of sale
(Stellenbosch : Stellenbosch University, 1999-03) Laing, Martin Roland; Lubbe, Gerhard; Stellenbosch University. Faculty of Law. Department of Private Law.
ENGLISH ABSTRACT: This study addresses the well-established principle of South African law that a price in a contract of sale must be certain or objectively ascertainable. The interpretation given to this principle by our courts is examined first, and found to be conservative. This approach is thereupon set against the recognition that parties frequently wish to provide for the possibility of price adaptation. The notion of price adaptation recognises that the latter often contract within a commercial environment fraught with uncertainty, yet wish to agree upon a price term which is both flexible and secure. An attempt to provide for price adaptation may bring an agreement into conflict with the rule of pretium certum. Accordingly, the study addresses the various means by which parties attempt to import price adaptation, whilst, at the same time, ensuring that their agreement does not fall foul of the latter rule. The courts may be of help through the implementation of terms or, as in the case of certain European jurisdictions, through their power to modify agreements following a drastic change in circumstance. Particular attention is given, however, to price adjustment clauses and reference in contracts to the standard of reasonableness. The development of price adaptation techniques depends upon the astuteness of courts in their striking down of agreements on the basis of pretium certum. The study concludes with an analysis of the American approach to certainty of price.

Browse

Browsing Masters Degrees (Private Law) by Title

Results Per Page

Sort Options