Faculty of Law
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The Faculty of Law is situated in the Old Main Building, the centre of Stellenbosch. Initially the Faculty concentrated on LLB degrees, training and equipping students, not merely as legal practitioners, but also as jurists. Graduates of the Faculty include judges, advocates, attorneys, business people, politicians and academics.
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Browsing Faculty of Law by browse.metadata.type "Thesis"
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- ItemDie aard van borgverrigtinge met spesifieke verwysing na die toepassing van die reels van die bewysreg op sodanige verrigtinge(Stellenbosch : Stellenbosch University, 2004-04) Hendriks, Renette; Van der Merwe, S. E.; Stellenbosch University.Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: When evaluating a bail application, the court must take into consideration the interests of the accused against those of the community. The main goal of this assessment is to find a balance between said interests. While an application for bail is made at a stage where guilt has not been proven, it is of extreme importance that the court must not infringe on the fundamental rights of the accused which include the right to personal freedom and the presumption of innocence. In order to protect the rights of the bail applicant within the proper functioning of the legal system, it is important to determine the nature of bail proceedings. As shown in this thesis, bail proceedings are sui gelleris in nature, which means that a separate set of rules of the law of evidence is applicable to these proceedings. The object of this thesis is to identify the rules of law of evidence applicable to bail proceedings as well as to clarify the deviation from the normal rules of evidence which apply to the trial of the accused. In chapter one the purpose and nature of bail proceedings as well as the characteristics of accusatorial and inquisitorial systems, are discussed. Problem areas within the South African legal system with regards to bail applications are also highlighted in this chapter. In chapter two the application of the primary rules of the law of evidence with regards to bail proceedings are investigated as well as the admissibility of evidence pertaining to prior convictions of the applicant, opinion evidence and character evidence. In chapter three the admissibility of hearsay evidence at bail proceedings is discussed. The constitutionality of the privilege pertaining to the police docket is dealt with in chapter four. Chapter five deals with the infom1er's privilege. The requirements that have to be met in order to qualify for protection under the said privilege, are examined. Chapter six focuses on the privilege against self-incrimination and the manner In which it is applied in bail proceedings. The provisions of s 60(11B)(c) of the Criminal Procedure Act and the role of the presiding officer are also discussed in this chapter. Chapter seven focuses on the burden of proof in bail applications. Chapter eight contains a summary and recommendations.
- ItemThe absence of a system of internal controls in South African Administrative Law, in light of Section 7(2) of the Promotion of Administrative Justice Act 3 of 2000(Stellenbosch : Stellenbosch University, 2020-12) Heydenrych, Ernst; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: Section 33 of the Constitution envisions a lawful, reasonable and procedurally fair manner of obtaining administrative justice. Coupled with the project of Transformative Constitutionalism, which seeks to create a culture of justification, the hope was that South Africa’s public administration would become more open, accountable and efficient. The primary mechanism through which the above occurs, is judicial review. However, its time-consuming and costly nature means that a large portion of South African society cannot gain access to the court system. Furthermore, courts have often held that the public administration is better suited to deal with certain matters, as courts may lack the necessary expertise to address a particular administrative matter adequately. Thus, there is a need to find alternative methods for holding the public administration accountable. One such method, is by way of the exhaustion of internal remedies. Section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000 holds that an applicant for judicial review must first exhaust any and all available internal remedies before approaching a review court. Should the applicant fail to do so, the court is obliged to direct said applicant to first exhaust the available internal remedies (section 7(2)(b)), unless the court grants an exemption (section 7(2)(c)). However, members of the public have no general right to an internal remedy, nor is there a duty on the state to provide an aggrieved party with one. South African administrative law currently lacks a uniform system of internal controls (remedies), and whether or not an aggrieved party will have an internal remedy to exhaust, will depend on the context of each case. Accordingly, this thesis argues in favour of the creation and implementation of a uniform system of internal controls by the state, by relying on four main points: (a) section 33 of the Constitution; (b) the project of Transformative Constitutionalism; (c) the impact of poverty on the attainment of administrative justice; and (d) the duty to exhaust domestic remedies under international law. Should the above argument be accepted, then focus must shift to the content and scope of an effective internal remedy. By way of analysis of various statutory frameworks containing existing internal remedies, nine criteria are identified, which should inform the decision-making of the state when formulating the content and scope of an effective internal remedy.
- ItemAbuse of dominance and the Internet : an assessment of the South African Regulatory Framework(Stellenbosch : Stellenbosch University, 2021-12) Koornhof, Pieter Gerhardus Jacobus; Sutherland, Philip J.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: While electronic commerce in South Africa is still comparatively small, it is growing rapidly. The advent of the internet has potentially fundamental impacts on business and the law both locally and internationally. It is submitted the free competition on the internet is important and will continue to be so in the future. The research in this thesis relates to the rise of so-called internet monopolies (such as Google, Facebook and Amazon) and its implications for competition law enforcement. A particularly problematic aspect of the products provided by some of these companies is that their products and services are ostensibly free to consumers. This thesis examines whether the traditional model for the regulating abuse of dominance would be effective in the instance where such an internet monopoly is charged with a contravention under South African competition law. The research and analysis in the thesis are effectively divided into three parts. The first considers whether abuse of dominance related to the internet deserves closer analysis and also assesses the purposes of competition law and how these are changing (or should change) in the light of new technology and markets. The second part deals with abuse of dominance both generally and specifically in relation to the internet. In this context, the thesis considers how harms may manifest and how dominance may be determined in the context of the internet. The final part considers specific issues that may be problematic in light of the internet. The interrelationship between intellectual property and competition law is analysed, along with aspects pertaining to the assertion of jurisdiction, the nature of competition law enforcement and the extent to which different jurisdictions may (and/or should) cooperate in dealing with abuse of dominance on the internet. The thesis submits that the South African legislative framework for regulating abuse of dominance on the internet is broadly fit for purpose, but that there is a need for developing new approaches and policy within that framework. It contributes to the existing body of knowledge and discourse by providing a comprehensive overview of the regulatory framework in South Africa, informed by comparative analysis; by applying this in a new context (hitherto under-researched in the South African context), and by offering concrete suggestions to frame policy and approach.
- ItemAbuse of legal personality to avoid tax : piercing the corporate veil as remedy in case of the abuse of legal personality for tax purposes(Stellenbosch : Stellenbosch University, 2019-04) Marais, Albertus Johannes; Van Wyk, Andreas; Du Plessis, Izelle; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT : Companies are legal persons and as much part of commercial traffic as the natural persons owning and controlling them. Compared to one another, companies and natural persons nevertheless have very different legal abilities and characteristics. It is therefore not unexpected that they are treated differently for purposes of the law of taxation. As a result it may often be more beneficial to have the profits generated by a business enterprise taxed in a company rather than in the hands of a natural person, especially in instances where a shareholder would be commercially indifferent to whether those profits are generated in a company or not. By using the separate legal personality of a company shareholders may often perpetrate an abuse of that separate legal personality. Such abuse of legal personality can also take place when legal personality is employed primarily for tax reasons. While a limited form of abuse of the corporate veil is tolerated, whether the use of separate legal personality for tax reasons amounts to an abuse thereof beyond what is permitted in South Africa can be determined in terms of three tests. These tests are the traditional “piercing of the corporate veil” judgments forming part of the common law, section 20(9) of the Companies Act 71 of 2008 and the General Anti-Avoidance Rules (“GAARs”) (and other specific provisions) in the Income Tax Act 58 of 1962. This dissertation considers when any of these various tests will dictate that the separate personality of a company be ignored (or “pierced”) for purposes of taxes levied in terms of the Income Tax Act. Through critical analysis of both the South African rules on piercing as applied for tax purposes as well as the circumstances under which selected other jurisdictions provide for piercing for tax reasons the dissertation formulates what best practice and desired policy for piercing for tax reasons are.
- ItemAccess to justice for non-citizens : a constitutional analysis(Stellenbosch : Stellenbosch University, 2014-04) Matshakaile, Thabani Nkosiyapha; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx of migrants, asylum seekers and refugees since 1994, and this migratory movement has posed significant challenges to the post-apartheid legal order. This thesis is concerned with the State’s implementation of its constitutional obligations to protect and guarantee the constitutional rights of everyone within the borders of South Africa. It is important that these constitutional obligations do not remain mere aspirations but should translate into reality. Most non-citizens living in South Africa face numerous barriers to accessing justice and the processes that could enable them to realise their rights. The thesis examines the concept of “access to justice” and investigates a number of obstacles encountered by different categories of non-citizens – such as refugees, asylum seekers and documented and undocumented migrants – in trying to access justice and to realise their rights. Against this background, arrest, detention and deportation under the Immigration Act and Refugees Act are examined because these processes have often been abused by State officials to prevent non-citizens from accessing the rights and protections guaranteed in these Acts and the Constitution, and to frustrate the implementation of court orders vindicating the rights of non-citizens. The application of the Immigration and Refugees Acts is discussed through the lens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detention and deportation are done in a lawful and procedurally fair manner, as opposed to the arbitrariness that most non-citizens experience on a daily basis. Secondly, the thesis also examines access to justice for non-citizens in the context of xenophobia and bias based crimes. The State has in the past failed to respond in a coordinated and timely fashion in the face of violent manifestations of xenophobia. Against this background, the State’s obligation to protect non-citizens from violence from either public or private sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. The role, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that were brought before them emanating from xenophobic incidents. The thesis concludes with proposals on areas which require better implementation of existing laws; and areas in which legislative reform is needed.
- ItemAcquisitive prescription in view of the property clause(Stellenbosch : Stellenbosch University, 2011-12) Marais, Ernst Jacobus; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: Acquisitive prescription (“prescription”), an original method of acquisition of ownership, is regulated by two prescription acts. Prescription is mostly regarded as an unproblematic area of South African property law, since its requirements are reasonably clear and legally certain. However, the unproblematic nature of this legal rule was recently brought into question by the English Pye case. This case concerned an owner in England who lost valuable land through adverse possession. After the domestic courts confirmed that the owner had lost ownership through adverse possession, the Fourth Chamber of the European Court of Human Rights in Strasbourg found that this legal institution constituted an uncompensated expropriation, which is in conflict with Article 1 of Protocol No 1 to the European Convention on Human Rights and Fundamental Freedoms 1950. This judgment may have repercussions for the constitutionality of prescription in South African law, despite the fact that the Grand Chamber – on appeal – found that adverse possession actually constitutes a mere (constitutional) deprivation of property. Therefore, it was necessary to investigate whether prescription is in line with section 25 of the Constitution. To answer this question, the dissertation investigates the historical roots of prescription in Roman and Roman-Dutch law, together with its modern requirements in South African law. The focus then shifts to how prescription operates in certain foreign systems, namely England, the Netherlands, France and Germany. This comparative perspective illustrates that the requirements for prescription are stricter in jurisdictions with a positive registration system. Furthermore, the civil law countries require possessors to possess property with the more strenuous animus domini, as opposed to English law that merely requires possession animo possidendi. The justifications for prescription are subsequently analysed in terms of the Lockean labour theory, Radin’s personality theory and law and economics theory. These theories indicate that sufficient moral and economic reasons exist for retaining prescription in countries with a negative registration system. These conclusions are finally used to determine whether prescription is in line with the property clause. The FNB methodology indicates that prescription constitutes a non-arbitrary deprivation of property. If one adheres to the FNB methodology it is equally unlikely that prescription could amount to an uncompensated expropriation or even to constructive expropriation. I conclude that prescription is in line with the South African property clause, which is analogous to the decision of the Grand Chamber in Pye.
- ItemAdministrative justice and tribunals in South Africa : a commonwealth comparison(Stellenbosch : Stellenbosch University, 2011-12) Armstrong, Gillian Claire; Quinot, Geo; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: In the field of administrative law, the judiciary has traditionally exercised control over the administrative actions of the executive through judicial review. However, judicial review is neither the most effective nor the most efficient primary control mechanism for systemic administrative improvement. In a country faced with a task of =transformative constitutionalism‘, and hindered with scarce resources, there is good cause to limit judicial intervention as the first response to administrative disputes. The major theme of this thesis is to investigate the feasibility of administrative tribunal reform in South Africa, using two other commonwealth countries, Australia and England, as a basis for comparison. Australia and England have been chosen for comparison because they share similar administrative law traditions and they can provide working models of coherent tribunal structures. The Australian tribunal system is well-established and consists of tribunals which fall under the control of the executive, while tribunals in England have recently undergone a significant transformation, and are now part of the independent judiciary. The South African government currently spends, indeed wastes, a significant amount of money on administrative law litigation. Due to the limitations of judicial review, even after the high costs of litigation and the long duration of court proceedings, the results achieved may still be unsatisfactory. Furthermore, judicial review is unsuited to giving effect to systemic administrative change and the improvement of initial decision-making. Australia and England have begun to move away from the traditional court model for the resolution of administrative disputes. Both have indicated a preference for the important role of tribunals in the administration of disputes. Tribunals have been shown to offer the advantage of being speedier, cheaper, more efficient, more participatory and more accessible than traditional courts, which contributes to tribunals being a more available resource for lay people or people without sophisticated legal knowledge, and provides wider access to remedies than courts. The English and Australian models indicate a few important trends which need to be applied universally to ensure a sustained tribunal reform and a system which provides a higher level of administrative redress than the over-burdened and institutionally inept courts currently do. These include co-operation among government departments and tribunals; open and accountable systemic change; the need for supervision and evaluation of the whole of administrative law by an independent and competent body; and ultimately a focus on the needs of users of state services. At the same time, there are arguments against administrative tribunal reform. These include the costs of reform; the ways to establish tribunals; and the level of independence shown by the tribunals. These arguments are especially relevant in the South African context, where the government faces huge social problems and a scarcity of resources. However, after an analysis of the valuable characteristics of tribunals and the role that they serve in the day to day administration of justice, it is difficult to see how these objections to tribunals can outweigh their potential importance in the administrative justice system. The need for sustained systematic reform in South Africa is one that cannot be ignored. Tribunals offer a valuable alternative to judicial review for the resolution of administrative disputes. Furthermore, the tribunal systems of Australia and England demonstrate how the effective creation and continued use of comprehensive tribunal structures contributes firstly to cost reduction and secondly to ease the administrative burden on courts who are not suited to cure large-scale administrative error.
- ItemThe admissibility of a case before the International Criminal Court : an analysis of jurisdiction and complementarity(Stellenbosch : Stellenbosch University, 2002-03) Denecke, Jan; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The permanent International Criminal Court (ICC) will come into operation after the 60th ratification of the Rome Statute of the International Criminal Court of 1998. The ICC will have jurisdiction over the most serious international crimes, namely war crimes, genocide and crimes against humanity. The focus of this thesis is the difficulties surrounding the admissibility of a case before the ICC. There are basically two legs to this analysis: jurisdiction and complementarity .. Jurisdiction of the ICC is analysed in historical and theoretical context. This comprises an overview of the international tribunals since the First World War, and more specifically their impact on the development of jurisdiction in international criminal law. Secondly, the thesis is examining the jurisdiction of the ICC in terms of the specific provisions of the Rome Statute. This analysis comprises a detailed analysis of all the provisions of the Rome Statute that have an impact on the exercise of the ICC's jurisdiction. The relationship between the ICC and national courts is a difficult relationship based on a compromise at the Rome Conference in 1998. The principle underlying this relationship is known as "complementarity". This : means that the ICC will only exercise its jurisdiction if a national court is "unwilling" or "unable" to exercise its jurisdiction. A detailed analysis of the different provisions of the Rome Statute, as well as some references to other international tribunals, serve to analyse the impact of complementarity on the eventual ambit of the ICC's jurisdiction. In conclusion, some suggestions regarding the admissibility of cases and the difficult relationship between the ICC and national courts are made.
- ItemThe admissibility of unconstitutionally obtained evidence : issues concerning impeachment(Stellenbosch : Stellenbosch University, 2005-05) Niesing, Gysbert; Van der Merwe, S. E.; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The law regarding the admissibility of unconstitutionally obtained evidence for impeaching the accused's testimony is still undeveloped. This work discusses three of the options available to South African courts and the difficulties inherent in each. The first is to follow the approach of the Supreme Court of the United States. The American approach regarding the exclusion of evidence from the case in chief is strict. Courts are not bestowed with a discretion to admit unconstitutionally obtained evidence: Unless one of the accepted exceptions exist, a court must exclude unconstitutionally obtained evidence in order to deter unconstitutional behaviour by the authorities. Deterrence of unconstitutional police behaviour is however no longer considered controlling when cross-examining the accused. Unconstitutionally obtained evidence - both real and testimonial communications - is therefore admissible for impeachment purposes despite being excluded from the case in chief. The rationale is to prevent the accused giving perjurious testimony in the face of the prosecution's inability to impeach the accused's veracity in the usual manner. The application of the American approach in South Africa has however already been rejected in S v Makhathini.1 The second possibility is for South African courts to follow the position of the Supreme Court of Canada in R v Calder.2 The admissibility of impeachment evidence in Canada - as with evidence in chief - is based on the effect of its admission of the repute of the administration of justice. However, evidence excluded from the case in chief will only in very rare circumstances be admitted in cross-examination of the accused. Finally, the option suggested by this thesis, is to continue the trend started by s 35(5) of the South African Constitution, which has already been applied with great success in cases where the admissibility of unconstitutionally obtained evidence in the case in chief is in issue. Section 35(5), like the Canadian s 24(2) it bears some resemblance to, gives courts a discretion to exclude unconstitutionally obtained evidence on the basis of unfairness to the accused or the effect admission will have on the administration of justice. It is submitted in this thesis that, because of the interlocutory nature of a ruling on admissibility, this approach adapts easily to the admission of limited purpose evidence such as impeachment evidence: If the admission of the unconstitutionally obtained evidence, regardless of whether it was previously excluded from the case in chief, renders the trial unfair or would otherwise be detrimental to the administration of justice it must be excluded.
- ItemAdvancing the constitutional goal of social justice through a teleological interpretation of key concepts in the environmental rights in section 24(Stellenbosch : Stellenbosch University, 2014-12) Donald, Megan Elizabeth; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The protection and conservation of the environment is essential for the continued existence of humankind, particularly in light of the challenges of climate change and environmental degradation. Along with these environmental concerns, South Africa faces challenges of poverty and inequality which can exacerbate environmental degradation. It is also often the poor who bear the brunt of the impacts of pollution and environmental degradation. Any effective approach to environmental protection must be mindful of the need for poverty alleviation, while any socio-economic development must bear in mind the absolute necessity of the environment for the existence of humankind. Section 24(a) of the Constitution provides for the right to an environment not harmful to health or well-being, while environmental protection is included in section 24(b). A handful of cases have dealt with this right, but its meaning has not been developed or sufficiently defined. This thesis looks at the interpretation of the key concepts of “environment”, “health or well-being”, and “sustainable development” in section 24. This is done through a teleological interpretation of the right which is mindful of the role of the interdependence of rights, and the context of the Bill of Rights and the Constitution as a whole. In light of the transformative goals of the Constitution it is important that section 24 is construed with due regard to the influences and challenges of socio-economic concerns such as poverty, unemployment and inequality. This thesis argues that the environmental right in section 24 can and should be interpreted to advance the needs of the poor and improve their quality of life alongside the protection of the natural environment.
- ItemThe allocation of resources for the realisation of women's rights : an analysis of article 26(2) of the Maputo Protocol(Stellenbosch : Stellenbosch University, 2020-12) Doubell, Lize-Mari; Rudman, Annika; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The Maputo Protocol is the leading women’s rights treaty in Africa. However, the treaty can only be effectively implemented if resources, aimed at its realisation, are generated and spent through government policies and budgets. Article 26(2) of the Maputo Protocol provides that state parties are obligated to adopt all necessary measures, which include budgetary and other resources, for the full and effective implementation of the rights therein recognised. After examining how state parties to the Maputo Protocol and the supervisory bodies currently mobilise resources to realise women’s rights, it was established that article 26(2) is severely underutilised and/or incorrectly applied by state parties. Some of the main reasons for this is a misallocation of resources and that state parties do not fully understand their obligations under the Maputo Protocol. Thus, women are left disempowered and unprotected. To address these concerns, this thesis establishes the nature of state obligationsunder article 26(2) through developing an interpretative framework for resource allocation to realise women’s rights. Anti-essentialist feminist legal theory and gender responsive budgeting are used as the theoretical framework guiding the research. As Africa is such a diverse continent, the analysis of anti-essentialist feminist legal theory ensures that the complex needs of women with multiple identities and lived realities are considered. The substantive realisation of human rights cannot be separated from resource allocation; thus, gender responsive budgeting provides a lens through which holistic budgeting for women’s rights can be understood. This thesis also considers how other international supervisory bodies, such as the CEDAW Committee and the CESCR, have interpreted resource allocation for the realisation of human rights. These supervisory bodies have, through their various mandates, provided a rigorous interpretation of how state parties should generate and spend resources to ensure human rights are kept at the forefront. This thesis finds that state parties to the Maputo Protocol, and the supervisory bodies, still have a long way to go to ensure that article 26(2) is fully interpreted and implemented. However, there are immediate steps which all parties can take, including commencing long-term strategies, which will result in more holistic gender responsive budgets and policies. The African Court, the African Commission, the Special Rapporteur, civil society and state parties all need to work together to ensure that women’s rights are fully protected.
- 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.
- ItemAn analysis of the regulation of defence procurement in South Africa(Stellenbosch : Stellenbosch University, 2023-12) Heydenrych, Ernst; Quinot, Geo; Nel, Michelle; Nel, Michelle (Military lawyer); Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT : There is considerable scholarly work within the context of civil public procurement in South Africa. Currently, public procurement in South Africa also finds itself within a changing regulatory environment considering the replacement of the 2017 Preferential Procurement Regulations with the 2022 Preferential Procurement Regulations in January 2023, as well as the Public Procurement Bill, tabled in Parliament in June 2023. However, a major gap in local literature on public procurement is in the area of defence procurement. This is concerning because of the large defence budget and generally opaque nature of the defence sector. In this regard, the transparency requirement of section 217 of the Constitution of the Republic of South Africa, 1996 stands out and it is vital to interrogate defence procurement in terms of South African public procurement law. The challenges in South African defence procurement are well-known – from the Arms Deal in 1999 through to the procurement of the immune booster Interferon from Cuba in 2020 – thus showing a need for close attention to defence procurement regulation. Accordingly, this dissertation investigates what role the requirement of transparency fulfils within the regulation of defence procurement in South Africa. Will national security and secrecy always prevail, or will there be instances where transparency trumps secrecy? The study starts by carefully explaining the difference between the civilian and military working environments, the impact of military discipline, hierarchies and lines of command and control, as well as certain unique features such as the roles fulfilled by the Minister of Defence and Military Veterans, Secretary for Defence, Chief of Logistics (“C Log”) and Chief of the South African National Defence Force. The study then defines defence procurement, sets out its two categories (category 1 acquisition and category 2 procurement/supply chain management), and compares ordinary South African public procurement with the Department of Defence’s acquisition and supply chain processes. The study also places focus on the role of Armscor, the acquisition agency of the DoD, and the role it plays in conjunction with the Defence Matériel Division within the context of acquisition or category 1 procurement. Hereafter, the study analyses the defence procurement system by identifying seven widely encountered trends or challenges through method triangulation, sets out the Department of Defence’s approach to consequence management and transparency and evaluates the system’s compliance with the requirement of transparency in section 217(1) of the Constitution. Finally, based on this evaluation, the study discusses the concept of civil-military relations and the oversight role fulfilled by, among others, Parliament, the Military Ombud, the Defence Inspectorate and the Auditor-General of South Africa with regard to their ability to extract accountability in respect of procurement by the DoD in terms of both answerability and sanction as constitutive elements of accountability. The study concludes with several findings and recommendations for reform of South African defence procurement regulation, especially within the context of transparency.
- ItemAn analysis of the Separation of Powers Doctrine in Housing Rights Remedies Jurisprudence(Stellenbosch : Stellenbosch University, 2022-03) Weideman, Andrea Joy; Slade, Bradley V.; Kok, Anton; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The remedy issued by the Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC), has been criticized for being overly deferential. In spite of the courts’ wide remedial powers, it made an order lacking specificity about the measures required to remedy the housing rights infringement in that case, overly deferring its remedial role to the executive and legislative branches of government. The basis of the court’s overly deferential approach was the separation of powers doctrine. Therefore, the question that this study aims to address is how the separation of powers doctrine impacts on the courts’ provision of remedies in South African housing rights remedies jurisprudence. To answer this question, this study contains an analysis of the separation of powers doctrine in the abstract and as understood in the South African context, as well as an analysis of the remedies issued by the courts in housing rights cases, with a specific focus on the remedies issued by the Constitutional Court (hereafter “the Court”). This study attempts to illustrate that the foundation for the Court’s strict understanding of the separation of powers doctrine was laid during the debate about the inclusion of socio-economic rights in the 1996 Constitution. During this debate, separation of powers concerns, judicial capacity, and judicial legitimacy, were raised by those against the inclusion of socio-economic rights in the 1996 Constitution. In this study it was found that the same separation of powers concerns raised during this debate are ritually invoked by the Court in housing rights cases during the remedy stage of adjudication. It is against this backdrop that the Court has traditionally adopted a deferential approach in relation to the provision of remedies in housing rights cases. However, despite the implications of the Court’s traditionally deferential approach, the Court post-Grootboom has shifted away from this approach. While the Court’s postGrootboom approach was necessary considering the failed interaction between a deferential Court and an incompetent government, and its implication for the victims of housing rights violations, it potentially raises separation of powers concerns. Despite these separation of powers concerns, it is argued in this thesis that the Court’s post-Grootboom approach is justified on the basis of a more contemporary understanding of the separation of powers doctrine. While the Court’s post-Grootboom approach was a step in the right direction, the transformative — coupled with the supreme — nature of the 1996 Constitution requires something more, a reconceptualization of the separation of powers doctrine. The reconceptualised doctrine that I have in mind encapsulates a separation of powers that is understood and applied by the Court with the achievement of the transformative aims of the 1996 Constitution in mind.
- ItemAncillary rights in servitude law(Stellenbosch : Stellenbosch University, 2015-12) Van Staden, Sonja; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Department of Public LawENGLISH ABSTRACT :Servitudes are regulated in South African law by the principles of the common law. One set of principles regulate servitudes ex ante – limiting and controlling the establishment of servitudes. Another set of principles regulate the continued relationship between the parties. They include the principle that a servitude, once granted, includes all that is necessary for the effective exercise of the servitude by the dominant proprietor and the principle that requires reasonable exercise of the servitude rights with due regard for the interests of the servient proprietor. The problem lies in determining the scope of a servitude and establishing whether “what is necessary for the effective exercise of the rights” is a flexible concept, especially when flexible interpretation of servitudes creates tension between the two principles mentioned above. The approach of South African courts is to maintain stability in the system of property law, thus emphasising the principle that servitudes are to be interpreted strictly. A comparative and theoretical overview indicates that a recent shift has taken place in the regulation of servitudes from an ex ante approach focussing on security and stability of property rights, towards a flexible regulation of servitudes by way of ex post controls that allow amendment or termination of obsolete or undesirable burdens on land. This shift is underpinned by the reality of changed circumstances and the need for servitudes, as long-standing property arrangements, to adapt to changes so as to ensure the productive use of land as a resource. With reference to Dutch, Scots, English and Louisiana state law, this dissertation considers ways to incorporate flexibility in servitude law, usually by way of statutory intervention. However, in South African servitude law the possibility of statutory intervention is slim. Accordingly, innovative measures must be developed within the common law framework. The need for flexibility in South African servitude law can be satisfied by development of the common law in the form of ex post application of the existing common law principles. If these principles are applied in a manner that takes account of the current context of the servitude, many of the problems created by the view that servitudes are static and unchangeable can be solved. If properly implemented, this can allow for the amendment of existing entitlements or acknowledgement of new ancillary entitlements, without compromising the security of property rights.
- 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.
- ItemThe Application of the Joint Criminal Enterprise Doctrine in International Criminal Law for the Prosecution of Sexual Offences(Stellenbosch : Stellenbosch University, 2015-12) Hartle, Chelsea; Rudman, Annika; Stellenbosch University. Faculty of Law. Department of Public LawENGLISH ABSTRACT : The aim of my thesis is to test Haffajee‟s propositions in order to determine the most suitable construction of the Joint Criminal Enterprise (“JCE”) doctrine to establish a link between an accused and a sexual offence, perpetrated by another, where there is reason to believe that the accused had intent and made a contribution. An evaluation of cases, concerning incidences of sexual violence, from the International Criminal Tribunal for Rwanda (“ICTR”) and the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) revealed that the reoccurring inability of the prosecution to successfully link the accused to the crime, committed by another, is the cause of the difficulty experienced in securing successful prosecutions. The individual criminal responsibility of the physical perpetrator therefore falls beyond the scope of this thesis. The JCE doctrine is a mechanism that attributes individual criminal responsibility to an accused for crimes that he or she did not physically perpetrate. The accused‟s wrongfulness arises from his or her intentional and substantial contribution to the criminal enterprise with the direct intent of furthering the common criminal purpose or plan. JCE category three has been successfully used by the ICTR, ICTY and United Nations Mechanism for International Criminal Tribunals (“MICT”) to establish the criminal responsibility of high-ranked officials for acts of sexual violence committed by others. However the JCE doctrine has not been used by the International Criminal Court (“ICC”). My research therefore departed from the primary assumption that the ICC may rely on the jurisprudence of the ad hoc tribunals when interpreting provisions of the Rome Statute pertaining to individual criminal responsibility, in order to sustain the continued use of the JCE doctrine within international criminal law. An in-depth investigation revealed that the jurisprudence of the ad hoc tribunals is neither expressly listed as an applicable source for interpreting the Rome Statute nor does it amount to binding precedent. Nevertheless, the ICC may have to consider the jurisprudence of the ad hoc tribunals when interpreting the Rome Statute because the jurisprudence often reflects principles and rules of international law. Notwithstanding the usefulness of JCE category three, the doctrine cannot unjustifiably limit the rights of the accused or infringe the principles of legality and the principle of culpability. The original construction of JCE category three, as first applied by the ICTY in the Prosecutor v Tadić, poses a threat to the principle of culpability because it imposes equal liability to all contributory JCE members, irrespective of their degree of contribution. Furthermore, it has been used to establish liability for specific intent crimes even though the accused did not possess specific intent. Arguably, the reform of article 25 of the Rome Statute that expressly incorporates and codifies a more detailed construction of JCE category three, as developed by the ad hoc tribunals over a decade, which allows for attribution of a varying degrees of liability; relative to the specific accused‟s intent and contribution, shall ensure the protection of the principle of culpability and the principles of legality.
- ItemThe application of the principle of complementarity in the relationship between the African Court and the African Commission under the Regional African Human Rights System(Stellenbosch : Stellenbosch University, 2021-12) Thomas, Irene Nyakagere; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.ENGLISH ABSTRACT: The principle of complementarity has great potential in enhancing the engagement between the African Commission on Human and Peoples Rights (African Commission) and the African Court on Human and Peoples Rights (African Court) to improve and strengthen the protection of human rights on the African continent. As observed in this research, the shared and overlapping mandates of these institutions can only be effectively coordinated if they work together in a planned, structured, and constructive way. As argued in this research, a well informed and developed application of the principle of complementarity could aid in achieving the overlapping mandates of these institutions, enhance access to justice within the regional African human rights system and facilitate the maximisation of the limited financial resources allocated to the two institutions. The 17 years of co-existence between the African Commission and African Court have witnessed various efforts geared towards activating the principle of complementarity. This includes case transfers and reform of the Rules of Procedure of the two institutions. However, the application of complementarity in the relationship between the African Commission and the African Court still faces serious challenges. The main hurdles being the ambiguity of, and minimum recourse to the complementarity provisions by the two institutions. In a quest to unlock the potential of the principle of complementarity, this research adopts a theoretical framework that speaks not only to the legal component of the discourse but also to its organisational component. The analysis is informed by a fusion of reinforcement theory and relevant elements of organisational theory. To establish a frame of reference to guide the analysis of the application of the principle of complementarity in the relationship between the African Commission and the African Court the research also analyses other complementary institutional arrangements in international law such as the United Nations’ human rights compliance mechanisms, the International Criminal Court system, the Inter-American human rights system as well as the European human rights system. The research findings demonstrate the need for the incorporation of the organisational component in the deliberations and strategies adopted by the two institutions with regard to their complementary relationship. By drawing inspiration from other regional and international complementary institutional arrangements, the research further highlights that the lack of express articulation of the modes of engagement in the complementarity arrangement between the African Commission and the African Court does not bar the development of mutual enforcement strategies. Instead, it could inspire flexibility and progressive transformation to ensure that the normative framework does not restrict complementarity.
- ItemAn assessment of constitutional guarantees of religious rights and freedoms in South Africa(Stellenbosch : Stellenbosch University, 2002-03) Gildenhuys, J. L.; Du Plessis, L. M.; Stellenbosch University. Faculty of Law. Dept of Public Law.ENGLISH ABSTRACT: The central issue which is considered in this thesis is the meaning of the constitutional guarantees of religious rights and freedoms in South Africa. In other words, it is concerned with the functions of the state, through its laws or conduct, in respect of religion and with its relationship towards the institutional church or religious community. It is argued that religious freedom is, in fact, a bundle of rights and freedoms. The "essential rights and freedoms of religion" which constitute this "bundle" are identified in the context of the historical development of religious rights. It is shown that religious rights theories have developed in the West which include concepts of freedom of conscience, the right to freely exercise religion, accommodation of pluralism of a confessional and institutional nature, equality of all religions before the law, nondiscrimination on the grounds offaith, institutional separation of church and state and some separation of state (or law) and religion. It is maintained that no single principle could by itself guarantee religious freedom and that these rights and freedoms are mutually. supportive of and mutually subservient to the highest goal of guaranteeing religious freedom. These essential rights and freedoms are therefore treated as constituting minimum standards for the protection of religious freedom and it is argued that religious freedom as protected in the South African Constitution should be interpreted to incorporate these multiple principles. It is shown that, prior to the promulgation of the interim Constitution the essential rights and freedoms of religion were not adequately protected in South Africa and that the constitutional entrenchment of these essential religious rights was necessitated by various factors in the preconstitutional South African society. The position with regard to religious rights and freedoms in post-Constitutional South Africa is considered by briefly sketching the broader constitutional context and by assessing the constitutional clauses protecting religious rights to determine whether the essential rights are protected. The religious rights provisions in the Constitution are analysed in detail in order to determine how they should be interpreted and implemented to ensure adequate protection of the essential rights and freedoms of religion in South Africa.
- ItemAn assessment of the South African law governing breach of contract : a consideration of the relationship between the classification of breach and the resultant remedies(Stellenbosch : Stellenbosch University, 2004-04) Venter, Cindy Michelle; Lubbe, G. F.; Stellenbosch University. Faculty of Mercantile Law. Dept. of Law.ENGLISH ABSTRACT: The South African system of breach of contract recognizes several distinct forms of breach. each encompassing its own set of requirements. Before one is able to determine the outcome and accordingly the rights of each contracting party in respect of an alleged breach of contract. the factual situation must be fitted into one of the recognized forms of breach. This has resulted in a highly complex system of breach of contract and resultant remedies. The existence of a direct relationship between the form of breach present in a factual situation and the remedies available to the innocent party is a fundamental premise of South African law and one that is often accepted without much investigation. This thesis investigates the extent of this interdependence and to establish whether this intricate system is necessary from a practical and a theoretical point of view. To this end. the thesis examines the less complex system of breach of contract as embodied in the United Nations Convention on Contracts for the International Sale of Goods C·CISG'·) which has been widely adopted in international trade. and which has provided a template for the reformation of various national systems of law. This study concludes that the South African approach to breach of contract and remedies is in need of reform. and that a unitary concept of breach could provide a basis for both a simplification and modernization of our law.