Browsing by Author "Bennett, Thomas W"

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    The adequacy of the Tanzanian law on e-commerce and e-contracting : possible solutions to be found in international models and South African legislation
    (2011) Nangela, Deo John; Bennett, Thomas W
    This dissertation examines Tanzania’s legal framework in the light of the modern information and communication technologies, especially the Internet and e-commerce. The main goal is to assess the adequacy of the existing law and to provide recommendations for reforms that will reflect the borderless nature of e-contracts. These reforms must ensure the certainty and predictability needed for successful cross-border commerce. Achievement of these aims will build confidence and trust on the part of business entities and consumers, and, in addition, will enhance free trade, strengthen the growing market-based economy, and integrate Tanzania into the global economy.
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    Application of mandatory rules in the private international law of contracts : a critical analysis of approaches in selected continental and common law jurisdictions, with a view to the development of South African law
    (2002) Schafer, Kerstin Ann-Susann; Bennett, Thomas W
    This thesis is a comparative examination of the application of mandatory rules in the area of the private international law of contracts.] As will be seen during the course of this study, and as will be briefly noted in the following introductory remarks, this question arises in a number of situations. It prompts fundamental issues that have been debated for many years by academics all over the world. Some of the problems are still not fully settled.
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    Application of the international prohibition on child labour in an African context : Lesotho, Zimbabwe and South Africa
    (2008) Nhenga, Tendai Charity; Bennett, Thomas W
    The international community's overwhelming support for the United Nations Convention on the Rights of the Child of 1990 and the International Labour Organisation's Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999, implies a high degree of international concern for the welfare of the child. This backing is based on an assumption that the institutionalisation of children's rights and the abolition of child labour at a global level will result in the improvement of the lives of all children. Despite this display of concern, there are considerable differences between the North and the South on the child rearing methods and attitudes towards the work of children. With this in mind, can a world that is so diverse socially and culturally effectively implement the international law on child labour? This research therefore set out to examine the efficacy and appropriateness of the universal standards on child labour in the context of the indigenous societies of Lesotho, Zimbabwe and South Africa.
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    Constructing equality: developing an intersectionality analysis to achieve equality rights for the girl child subject to South African customary law
    (2016) Amoah, Jewel Dee Afua; Bennett, Thomas W
    Equality, an ideal that like should be treated alike, lies at the heart of most national constitutions and all international human rights instruments. Despite its ancient origins, however, this principle is far from being achieved in practice. Hence, in the search for full substantive equality, critical legal scholars put forward a theory and accompanying analytical framework of intersectionality. Using South Africa as an example, this thesis examines the realisation of the constitutional promise of equality for those who have been traditionally marginalised by reason of their intersecting race and gender identities. The process of navigating this identity intersection is complicated by the cultural diversity that is a feature of South African society. The Constitution nevertheless, encourages such diversity, and goes even further to give equal recognition to the coexisting systems of common and customary law that are rooted in Western and post-colonial African cultures, respectively. It follows that a full understanding of the different legal and social contexts in which a rights claimant lives is critical to the achievement of substantive equality.
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    Fair trial and access to justice in South Africa how traditional tribunals cater to the needs of rural female litigants
    (2013) Aiyedun, Yetunde Adenike; Bennett, Thomas W
    European and North American jurisprudence imbued the concepts of fair trial and access to justice in Western culture. The United Nations later proclaimed these foreign principles 'universal human rights', seemingly oblivious of the marginal role played by African states during conceptualisation. African governments, mindful of their minimal contribution to the content of individual rights, however, introduced communal rights and duties in the African Charter on Human and Peoples' Rights. This was the situation internationally, and in the region of Africa. On the domestic scene, South Africa ratified both international and African human rights conventions; hence, its Constitution incorporated the rights of access to justice, fair trial, equality and culture. These rights, however, create conflict during dispute resolution. This is evident with the country's multiple legal systems, allowing urban and rural litigants to engage in forum shopping, by approaching formal courts or traditional tribunals in civil and criminal contexts. In the formal courts, rural litigants (especially women, as lower income earners) encounter exorbitantly high costs of litigation, long travel distances to court, alien laws and procedures and, all too often, a foreign language in court, making these forums inaccessible. Conversely, traditional trubunals guarantee easier access to justice because they provide affordable and comprehensible procedures, and are usually located in close proximity to parties. African tribunals, however, hinder equal standards between men and women during conflict resolution, by violating the right to gender equality — a right implicit in fair trial. Usually, traditional judicial officers accept women as complainants, witnesses or accused persons, but rarely encourage or recognise the female demographic as participants in a judicial capacity (in some cases they do not even permit them to attend judicial proceedings). In spite of these shortcomings, traditional methods advance flexible, communal and harmonious procedures, in accordance with the African culture. While these characteristics of traditional tribunals gurantee the protection of cultural equality, human rights activists are fixated with the argument that these African structures discriminate against women, and often ignore their benefits. More importantly, the proponents of human rights fail to investigate the inequalities that plague the formal justice system. Well aware of the limited research in both regards, this thesis conducts a broad critique of the South African justice system, comparing the formal with the traditional. Based on its findings, the study argues in favour of traditional tribunals, which guarantee cultural rights as well as access to justice for poorer litigants.
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    Has the state of war been made redundant by the UN Charter regime on the use of force?
    (2012) Dshurina, Stella Borissova; Bennett, Thomas W
    Does war still exist according to international law? On the one hand, the answer is obviously in the affirmative - hostilities including the use of force between states do take place and rules of international law regulating them do exist. Less obvious, however, is whether a state of war as a condition creating legal consequences not only for the parties involved, but also for other states, is still legally relevant. While there have been many conflicts since 1945, few of them have been characterized as “war” and no declarations of war have been made. Hence, there is a tendency to avoid the term “war” on the ground that it is “arcane” and largely superseded by the term “international armed conflict”. Moreover, it has been claimed that a state of war is incompatible with the UN Charter and therefore can no longer exist under international law so that a qualification of a conflict as “war” as opposed to “armed conflict” would have no legal consequences. This dissertation will examine whether the concept of war is still relevant and necessary despite the introduction of the modern concept of international armed conflict. In the course of answering it, three further questions need to be posed. First, is it compatible with the UN Charter to continue to invoke the concept of “war”? Second, what are the consequences of recognizing a state of war as a contemporary legal concept? Finally, are there any norms in international law which are applicable in a state of war only?
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    The role of jus cogens in resolving the intertemporal problem in Mau Mau torture claims and other historical injustices: a theoretical exploration
    (2015) Mogere, Evelyn Kerubo; Bennett, Thomas W
    The chief obstacle in the resolution of historical injustices in international law is the inter-temporal question, summarized as the requirement that positive substantive international law, as it stood at the time in which an injustice occurred, ought always to apply over latter laws. Jus cogens, being largely independent from positive international law, offers a possible resolution to this problem: a possibility that this thesis explores using Mau Mau torture claims as a case study. Present in much legal opinion on the question is a presumption that inter-temporal law applies unless state practice justifying an exception for jus cogens can be found. However, this necessarily subjects jus cogens to inter-temporality and contradicts the standard meaning of jus cogens and its superior status in the entire legal framework of international law. It is argued in this paper that the superiority of jus cogens in international law should be reflected in the application of the inter-temporal principle, as indeed it should in the application of all other inferior norms and principles wherever relevant subject matter is in issue. After the introduction in chapter one, the above-described problem in the scholarly approach to inter-temporal law and jus cogens is highlighted in chapters two and three, wherein an apparent normative conflict between jus cogens and inter-temporal law is demonstrated. But if jus cogens norms begin at an identifiable point in time and are prospective in nature, no over-lap and thus no contradiction can be spoken of where the matter occurred before the emergence of these norms, a problem tackled in chapter four. Difficulties in the standard definition of jus cogens found in article 53 of the Vienna Convention on the Law of Treaties are also discussed along with an argument for an unlimited temporal scope of application for 'humanitarian' peremptory norms. Lastly, chapter five approaches the problem through the prism of a balancing scale of competing interests. In short, this thesis argues that there is no threat to justice, law or truth in applying 'humanitarian' peremptory norms to old injustices in the area of state responsibility.
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    Unleashing the robotic dogs of war : what implications does the use of unmanned predator drones for targeted killing have on the interpretation, application and formation of international law?
    (2011) Kibet, Brian Sang Yegon; Bennett, Thomas W
    The thesis aims to establish the highest possible standards under international law to regulate the use of drones. It therefore seeks to suggest ways by which greater certainty and clarity can be brought to the law by determining which specific normative regime - selfdefence, humanitarian law or human rights - is most appropriate for the circumstance in which targeted killing is contemplated.