Browsing by Department "Department of Private Law"

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    A company is a company because of other people: corporate social responsibility and the constitution
    (2009) Cockburn, Alexandra; Cornell, Drucilla
    The inability of governments worldwide to protect individuals from economic insecurity has led to a renewed interest and public expectation that corporations have public responsibilities in furthering the interests of the public or the public good. Corporate social responsibility is a serious and pressing concern for all members of the new South Africa. Recent reports of fraud and corruption in the corporate sphere, coupled with ongoing environmental disturbances and labour disputes, have exposed the dangerous and potentially disastrous effects which can be triggered by corporate abuse. Serious attention and reform in this sphere are critical to the preservation and promotion of a harmonious future. South Africa needs to develop a legislative framework tailored specifically towards the governance of corporate social responsibility in order to ensure that corporate disasters can be foreseen and prevented well in advance of their occurrence, an occurrence that will impact negatively on the well-being of the economy as a whole as well as on the rights of individual citizens. Corporate social responsibility is not only a social imperative but also a constitutional mandate. Since the implementation of the Final Constitution in 1996, the South African Legislature has had a duty to bring the corporate sphere in line with the foundational principles of our new constitutional democracy, in particular with the Bill of Rights. To date, there has been no evidence of law reform in this regard. The new Companies Act, which was promulgated this year but which is only destined to come into effect in 2010, purports to impose greater restrictions and sanctions on the actions of corporate officers. However, the effectiveness of the proposed mechanisms has never been tested and is by no means guaranteed. What is required in order to comply with the constitutional mandate- in place of the present framework of disjointed fragments of legislation which have no unified or valuable effect - is a detailed study of the scope, content and practical implementation of corporate social responsibility jurisprudence, uniquely tailored to the South African context. Corporations are vastly superior to humans in power, money, and resources. Without a clear reason for them to respect human beings, we will be at their mercy. We will have created monsters. Contemporary society is characterised, to a large extent, by commercial interchange and corporate supremacy. Companies control South Africa's markets and its economy. The vast majority of South Africans rely on these 'corporate giants,' directly or indirectly, for their livelihoods. In an era of corporate dominance it is the responsibility of all South Africans to ensure that sufficient controls and restraints are placed on companies in order to prevent them from perpetrating fraud or other forms of abuse in respect of the societies in which they operate. There is a wide variety of individuals whose entire futures fall to be ruined on account of reckless and irresponsible business practices. On one end of the spectrum are the company's direct participants- employees and creditors - who will suffer direct and extensive financial loss through any malpractice on the part of the company. On the other end of the spectrum are various members of society who also have an interest, albeit an indirect one, in companies observing good business codes. For instance, where a company is polluting the environment of a specific community, every member of that community has an interest in ensuring that this matter is addressed and remedied. In addition, there are the consumers, who also have a direct interest in ensuring that companies observe high standards of care in their production processes and do not expose consumers to unnecessary product risks. Finally, the interests of all South Africans lie in the promotion and protection of the human rights enshrined in the Bill of Rights. The costs of corporate disaster have been brought to light in recent years. In the United States in the late 1990's, the fall of Enron and associated corporate giants exposed the dire societal consequences resulting from corporate abuse: "Total corporate debt in the form of outstanding bonds and loans soared to $8 trillion after 1998 ... " Americans insisted that the corporate officers responsible for this debt " ... should be forced to part with their ill-gotten gains, which could then be used as reparation for employees who lost jobs and pensions because of the deception. " However, in reality, only a fraction of the losses were recovered and paid out to the affected parties. More recently, the subprime crisis and resultant credit crunch over the last year, beginning with the collapse of the Lehman Brothers in the latter part of 2008, have wrought economic ruin on large portions of the global society. The results have been devastating with many people losing jobs, pensions and livelihoods the world over. The underlying cause of this corporate catastrophe was irresponsible business practices, most notably the activity of trading in non-existent securities. It is important to note that these corporate catastrophes originated in the United States, one of the wealthiest countries in the world. The results have been felt in South Africa, but we have managed to escape total financial ruin. However, if a similar disaster were to occur in South Africa alone, a significantly poorer country with far less advanced social welfare guarantees and virtually no means of supporting the financial burden of more insolvent citizens, it is unlikely that our foundling economy would be able to recover. "Susan George, author of A Fate Worse than Debt unambiguously demonstrates the inequity of the situation when she argues that Tanzania, a country with a gross national product of 2.2 billion dollars, has to share this between 25 million people; whereas Goldman Sachs, an investment firm ranking in annual profits of 2.2 billion dollars, shares these among 161 partners. "That's the world we're living in now," she says." It is clearly necessary to put in place effective preventative protection mechanisms to avoid corporate abuse in advance. The term generally used to describe such mechanisms is 'corporate social responsibility:' ... an agreement between business firms (all productive cooperative enterprises) and society (individual members of a given society in the aggregate) ... [and] the reciprocal expectations of the parties to the contract who were both assumed to be interested in maximizing the benefits (e.g. specialization, stabilisation of output and distribution, liability resources, increased wages) and minimizing the drawbacks (pollution, depletion of natural resources, destruction of personal accountability, worker alienation) of productive organizations. In order to supply a foundation for the concept of corporate social responsibility that is rooted directly in South African culture, it is both useful and enlightening to have regard to the philosophy of group and community solidarity enshrined in the African value of 'Ubuntu.' The cardinal belief of Ubuntu is that a person can only be a person through other persons. "The important values of Ubuntu are group solidarity, conformity, compassion, respect, human dignity and collective unity." It is clear that Ubuntu played a central role in the drafting of the South African Constitution, particularly in protecting human rights such as dignity, equality and freedom. However, in order to live up to the mandate of our constitutional democracy, it is necessary to continue to allow the values inherent in the Ubuntu culture to inform our decision making and legislating. In particular, respect and support for the rest of one's community is fundamental to the sustainability of a peaceful and progressive South Africa. This value must inform every facet of South African life, including the corporate sphere. Companies must fulfil their role as members of the African community and, as such, must provide guarantees that they will work in the interests of the community at large and provide respect and support to all members of that community. This attitude is entirely different to the present corporate mindset, a mindset driven entirely by the objective of unimpeded profit-maximisation at the expense of all other interests. However, as shall be exposed in this dissertation, a purely money-driven corporate mindset is unsustainable and harmful to both South African citizens and the environment in which they live. One of the interesting aspects of the value of Ubuntu is the fact that it is not an objective value against which Africans measure their actions but is instead an intrinsic part of every African, "entrenched and pervasive in virtually all aspects of their lives on a daily basis." This is exactly what is required in the sphere of corporate social responsibility. The entire corporate attitude must be altered so that respect and responsibility towards the South African community is not simply an ideal which may be promoted wherever possible in corporate action but is rather an intrinsic, fundamental and overarching principle which informs every decision and action on the part of the company. It is only through the achievement of this attitude that South Africans will be able to rely on companies behaving in a compliant and responsible manner: strict adherence to the values enshrined in Ubuntu will prevent corporate disasters - financial, environmental or personal - from taking place at all. This is superior indeed to the alternative, which is to force companies to provide remedies and redress to affected persons only after the relevant corporate disasters have taken place. It is far better to develop a corporate ethos that will prevent and curb the advent of such disasters in advance. That companies should amend their attitudes and respect their role as mutually dependent members of the communities in which they operate is evidenced from the following quotation: No enterprise or corporation can survive without society. In fact business enterprises are a creation of society. Society is made up of what have been referred to as the 'stakeholders' of business. They include the community in which the corporation or business enterprise operates, its customers, employees and suppliers. Business and society are mutually dependent. In pursuit of wealth and profit maximisation, companies utilise human and other resources, and in so doing provide employment, investment, goods and services. Business therefore forms part of the fabric of society. The practical starting point for the development of a South African doctrine of corporate social responsibility is the stakeholder model of company law. The present corporate mindset is controlled by the interests of shareholders only and, consequently, is fundamentally driven by a hunger for ever-increasing profits. However, the King Report on Corporate Governance suggests that companies should be required to promote the interests of all stakeholders, not merely the controlling shareholders. Clearly, this is the first step in ensuring that employees and creditors are protected from abuse, and that environmental activists and similar bodies are given the consideration and respect due to them. Such a model complies with the Ubuntu conception of mutual support and promotion, and with the mandate imposed by the Constitution that all South Africans should work together in pursuing the shared objective of a better life for all. However, the stakeholder model of corporate law is by no means a blueprint for a South African doctrine of corporate social responsibility. It is merely a starting point. One of the problems which are not directly addressed by this model is the ominous threat of fraud perpetrated by company officers. The new Companies Act attempts to curb the opportunities for fraud by imposing an "almost-strict liability" sanction on company directors and managers who do not act in the best interests of the company at all times. If the stakeholder model of corporate governance is introduced then the 'interests of the company' will be the interests of all the stakeholders of the company. The Supreme Court of Appeal in the Shaik criminal trial of 2006 emphasised the widespread and devastating results which fraud and corruption can have on the sustainable development of this country, and called for the Legislature to introduce even more stringent and powerful restrictions against such action. It is therefore necessary to evaluate the current position and determine the most effective mechanisms for dealing with corruption in the corporate sphere. This is an essential component of the principle of' accountability' contained in the Preamble to the Constitution. Up until recently, corporate social responsibility has been identified only in negative terms. It encompasses the obligation to refrain from fraud and corruption; to refrain from devaluing and abusing the interests of stakeholders such as employees, consumers and the like; to refrain from polluting the environment, and so on. But does the concept of corporate social responsibility amount to something more than this? Do the Constitution and the underlying African principle of Ubuntu require companies to take positive steps in the promotion and improvement of South Africans in general? The concept of corporate social responsibility could indeed be interpreted to impose positive duties on companies. Examples of what such duties would entail are numerous. Legislation may require that companies donate a portion of their profits to charity, or that all corporate officers and employees participate in pro bono work programmes. The affirmative action policies that are in place in most companies at present are an ideal example of an attempt to impose some level of social responsibility on companies and to force them to take part in the necessary redressing of the wrongs committed by the Apartheid State. The degree to which positive obligations may effectively be imposed on companies without inhibiting profit-maximisation is an issue requiring much more consideration and will be explored in more detail in this dissertation.
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    A consideration of certain aspects of South African civil procedural law and civil jurisdiction
    (1989) Faris, John Andrew; Taitz, J
    A salient defect of South African civil procedural law is its lack of a formally recognised fact-discovery mechanism for the purpose of complimenting the process of pre-trial litigation. This defect comes to the fore when the South African discovery model is compared with those of other Anglo-American jurisdictions. In common with other Anglo-American civil procedural systems, South African civil procedural law has formally incorporated within its rules of court a system of discovery, but its discovery model is restricted to that of documentary discovery. 1 In contradistinction with the South African model, the scope of the discovery models of the United Kingdom,2 Austraiia3 and New Zealand4 is far wider in that they include not only documentary discovery but also fact-discovery in the form of interrogatories. The discovery models of the United States5 and Canada6 are even more liberal than the aforementioned because, apart from the practice of documentary discovery and the exchange of interrogatories, oral depositions as a mode of discovery are also permitted. Seen in this context, there is a notional difference between the South African model and the discovery models of other Anglo-American systems in that the latter recognise and apply fact-discovery as a procedure distinct from documentary discovery. Why is this so?
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    A legal analysis of the relationship between, and role of, Consultation under the MPRDA and Public Participation under NEMA in safeguarding the environmental and health rights of mining communities
    (2023) Mothudi, Tlamelo; Luwaya, Nolundi; de Souza Louw Monica
    Mining activities, while of huge national economic benefit, severely disrupt traditional land usage, possession and ownership and severely pollute the natural environment. The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA) aim to ensure meaningful public participation of members of the community, lawful owners of land and interested and affected persons. This minor dissertation aims to unpack and analyse the role of consultation and public participation (PP) in upholding and protecting the environmental and health rights of mining affected communities. It explores consultation as conducted under the public participation provisions of NEMA, and whether the lack of meaningful consultation by mining applicants results in mining affected communities lacking proper understanding and appreciation of issues surrounding the health, environmental and other risks associated with mining. The dissertation considers how the granting of the mining or prospecting rights and mining permits without meaningful consultation contributes to environmental degradation as well as the ill health of mining affected communities and other undesirable health outcomes. Consultation and PP alone cannot guarantee the protection of environmental and health rights of communities. Where rights have been infringed, at the application stage or after the granting of mining and prospecting rights and permits, another inquiry of the dissertation is the availability of mechanisms that can be used by mining-affected communities in the enforcement of their rights. Throughout the dissertation, the role of a sound governance structure is explored in mitigating the negative impacts of mining on communities and promoting social, economic, and environmental outcomes. The dissertation argues that while mandated, consultation and PP are conducted as tick box exercises failing to properly engage with mining-affected communities allowing them to be part of decision making. It questions whether Consultation conducted as part of PP in terms of environmental legislation ensures that questions around the health impacts of the project are included in the consultation or whether independent Health Impact Assessments are needed. Ultimately, the discussions around the mining legislation, Consultation and PP, and the enforcement of community rights are all discussions centred on governance. The protection of environmental, social and health rights are dependent on social justice centred policies, regulations, laws and institutions and their implementation.
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    A legal perspective on the role of municipalities in navigating the relationship between land use planning and mining
    (2019) Van Schalkwyk, Catherine Louie; Mostert, Hanri
    The legislative and executive powers dealing with mining and land use respectively are allocated to different spheres of government. Mining rights are issued by the Department of Mineral Resources (DMR), as representative of the national government, whereas land use and zoning are regulated by municipalities, the local sphere of government. According to a 2012 ruling by the Constitutional Court of South Africa, a mining right holder cannot commence mining activities, despite holding the mining right, unless and until the land is appropriately zoned by the municipality in whose jurisdiction the land is located. The separate functions of the two spheres of government make duplication in application processes inevitable. The potential for conflicting decisions is also apparent. This project aims to determine how alignment of the respective processes of obtaining a mining right and land use approval can provide for better co-operation between the responsible government authorities. This question translates into two sub-inquiries: a) How do municipalities currently regulate land use for mining purposes? b) Should municipal rezoning procedures be incorporated into the application process for mining rights? These issues are considered by examining three selected municipalities’ rezoning procedures and policies and comparing these to the requirements of mining right applications. The thesis investigates the extent to which these procedures overlap and are duplicated. Potential policy changes are explored, to suggest streamlining application processes by providing a more cohesive solution. The three selected municipalities are the City of Cape Town Municipality in the Western Cape Province, the Sol Plaatje Municipality in the Northern Cape Province and the City of uMhlathuze Municipality in KwaZulu-Natal Province. The thesis shows how poor intergovernmental relations and processes hamper effective co-operation and collaboration between the DMR and municipalities. While it is imperative that each government institution retains legislative and executive authority over their respective constitutional powers – DMR over mining activities, and municipalities over land use issues – the thesis argues that greater efforts at process alignment or synchronisation are necessary. It offers suggestions for improvement.
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    A Missed Opportunity: The Rhetoric of Social Cohesion in Parliamentary Debates - 1994 – 2014
    (2022) Rahman, Zarina; Salazar, Ph-J
    Introduction: This thesis aims to explore whether the parliamentary rhetoric of Members of Parliament as leaders in South Africa contributed to social cohesion in the country. The motivation for the thesis was the violent actions by South Africans towards foreign nationals, specifically from the African and Indian sub-continent, who had migrated to the country in search of better prospects. Based on the country's history of racial discrimination and oppression, the thesis explores whether leaders were conscious of the need to build a South African identity that coheres sufficiently to accept and adjust to such social changes. Method: The thesis analyses parliamentary rhetoric during periods of crisis in the first twenty years of the South African democracy with the aim of ascertaining whether speakers display the ethos required to encourage social cohesion based on values. To delineate the available information into feasible segments, the thesis identified an area of crisis relating to each of the three Presidents during this period: Mandela (Truth and Reconciliation Commission (TRC)), Mbeki (HIV/Aids), and Zuma (Marikana). In addition to a rhetorical analysis, the thesis examines the extent to which speakers display an awareness of their audience(s). Findings: Although the tensions of the apartheid past remained evident during the debates about the Truth and Reconciliation Commission, as it was early in the democracy and the memories of that past was relatively fresh, there was some attempt to build coherence around values. However, the analysis of subsequent debates indicates a stronger adherence by Members of Parliament to party political positions than to the representation of the interests of the public on whose behalf they were debating. While expressing a party position is the norm within functioning established democracies, in the South African context, it tended to ignore the extent of the residual divisions and, consequently the best interests of the nation. The thesis recommends that the citizens of the country use their constitutional rights to rhetorically express their needs and to ensure that their voices are heard.
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    Access to Knowledge in Africa: the role of copyright
    (2010) Armstrong, Chris; de Beer, Jeremy; Kawooya, Dick; Prabhala, Achal; Schonwetter, Tobias
    The emergence of the Internet and the digital world has changed the way people access, produce and share information and knowledge. Yet people in Africa face challenges in accessing scholarly publications, journals and learning materials in general. At the heart of these challenges, and solutions to them, is copyright, the branch of intellectual property rights that covers written and related works. This book will help educators identifying challenges for learning materials access posed by copyright laws in Africa. Some solutions as to how to overcome these challenges are provided.
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    Adjudication of child relocation disputes in South Africa
    (2021) Marumoagae, Motseotsile Clement; Barratt, Amanda
    This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.
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    Advancing the effective implementation of the one environmental system for mining through cooperative environmental governance
    (2020) Mpinga, Shamila; Mostert, Hanri
    In 2014, the One Environmental System for mining came into effect. This legislative framework was introduced to streamline the environmental regulation of mining activities by consolidating such regulation in the National Environmental Management Act (NEMA). The most significant aspect of the regulatory framework, for purposes of this research, is the allocation of powers to the authorities responsible for implementing the One Environmental System. The authorities tasked with implementing the One Environmental System are the Department of Mineral Resources and Energy (DMRE), the Department of Environment, Forestry and Fisheries (DEFF) and the Department of Human Settlements, Water and Sanitation (DHWS). In the distribution of power, the DMRE is tasked with enforcing the regulatory framework in the minerals extraction industry. The DEFF sets the regulatory framework and is the appeal authority for decisions taken by the DMRE. Finally, the DHWS is responsible for regulating and enforcing the National Water Act. Although introducing the One Environmental System has improved the regulation of the environment in relation to mining, its regulation - and, more so, enforcement - has received more criticism than praise. Intragovernmental fragmentation has been cited as a cause of ineffective implementation of the regulatory framework. A lack of cooperation between the departments hampers the objective of streamlining the environmental regulation of mining. Therefore, it is imperative that the authorised departments cooperate with each other to achieve the effective implementation of the One Environmental System for mining. The aim of this dissertation is to suggest ways to foster cooperation between the DMRE, DEFF and DHWS to achieve the effective implementation of the One Environmental System. This goal is achieved by providing an analysis of the implementation efforts of the three departments. Since the analysis shows that intragovernmental fragmentation has hampered the effective implementation of the regulatory framework, this research provides recommendations to improve the implementation of the One Environmental System.
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    An analysis of the process of ascertainment and application of customary law in the formal institutions of adjudication: Nigeria and South Africa
    (2017) Badejogbin, Rebecca Emiene; Himonga, Chuma
    Judges of formal courts in Nigeria and South Africa do not easily have access to the contents of customary law they are required to apply in the course of adjudication and this has been a major challenge. This thesis examines the processes that courts adopt in the ascertainment and application of living customary law in Nigeria and South Africa in order to discover factors that influence the ascertainment and application of customary law. This research is qualitative in nature and utilises both doctrinal and empirical methods to make its findings. It examines the conceptualization of customary law in the context of the research against positivist and pluralist theories and analyses the doctrine of judicial discretion against relevant theories on how it impacts on the ascertainment and application process. The thesis also examines the current laws and procedures that regulate this exercise to discover how it contributes to what is ascertained by the court. For its primary sources, it utilised data obtained from the semistructured interviews conducted, and, records of proceedings of cases on customary law heard by the formal courts in Nigeria and South Africa within a fifteen-year period. The secondary and tertiary sources utilised include text books, journal articles, official reports and publications, and other literature. It identifies factors within the purview of institutional, substantive, procedural, socio-economic and political factors, as well as other factors that influence how judges exercise discretion in the ascertainment and application of living customary law. The thesis states that these factors contribute in varying degrees, to enhance or impede the ascertainment and application of living customary law by these formal courts. It therefore proposes the consideration of these factors in the policies that seek to develop measures that would enhance the ascertainment and application of living customary law by the formal courts in Nigeria and South Africa.
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    Analysis of the Nigerian Supreme Court's constitutional duty regarding women's inheritance right under customary law
    (2017) Aladetola, Opeyemi; Young, Cheri-Leigh
    Customary law existed before the enactment of formal laws to govern the affairs of Nigerians. It started as behavioural norms that grew to be widely accepted by the community and became law. Inheritance rights are recognised under Nigerian customary law. Most customs provided for a way in which a person's properties could be distributed upon his death. However, most of these customs did not make provision for women in the distribution of a deceased estate. This disparity between the inheritance right of a man and woman was very prominent in the distribution of landed properties. Upon the demise of a man, his estate becomes family property and his eldest male child inherits it on behalf of other male members of the family. Where the deceased dies without a son, his brother inherits the estate. Notably, the Constitution did not abolish laws that existed prior to its enactment. It provides that these laws shall continue to exist subject to its provisions, the Constitution provides for its supremacy over every other law, and that the court has a duty to invalidate any law that is inconsistent with its provisions. The Court found the opportunity to alter the unfair discriminatory position against Nigerian women and develop customary law in line with Constitution in the case of Anekwe v Nwekwe. Here, the defendant (brother of the deceased) sought to evict the plaintiff (widow of the deceased and her female children) from the property of the deceased because she had no male child. He claimed that based on their customary law female children are excluded from inheriting property. The Supreme Court then invalidated this customary law of male primogeniture for being repugnant to natural justice, equity and good conscience. Although the decision of the court solved the problem of discrimination, it failed to develop customary law by invalidating only the discriminatory aspect of the customary law. Lessons can therefore be drawn from the minority decision of the South African Constitutional Court in the case of Bhe v Magistrate of Khaylistha, where recourse to developing the customary law was posited. This study will examine to what extent the court has applied customary law to bring it to conformity with the Constitution, drawing from other African countries especially South Africa. It utilises literature review and case law analysis, arguing that the court needs to review the Anekwe v Nwekwe case and make a more declarative position that brings customary law up to date with modern realities. It will recommend that the courts should in consultation with the people develop the customary law of inheritance.
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    An analysis of the regulatory principles of functional equivalence and technology neutrality in the context of electronic signatures in the formation of electronic transactions in Lesotho and the SADC region
    (2018) Kulehile, Matsepo Regina; Collier, Debbie; Naude, Tjakie
    Despite the steady growth of electronic commerce (e-commerce), Lesotho and SADC users are uncertain of how to securely sign e-communications practicably. This results in users' lack of confidence in the use of e-commerce. SADC and Lesotho regulatory bodies have developed legal instruments including model laws and bills in an attempt to regulate electronic signatures (e-signatures) in e-commerce to address this problem amongst others. However, it is unclear whether the approach adopted will ensure that the regulatory instruments effectively regulate e-signatures and consequently promote the growth of e-commerce and enhance the socio-economic development of the state. This study examines what the information and communications technology regulatory principles of functional equivalence and technology neutrality entail, their interpretation by the United Nations Commission on International Trade Law (UNCITRAL), and their appropriateness for effective regulation of e-signatures through conceptual analysis. In particular it examines the UNCITRAL Model Laws on e-commerce, UNCITRAL Model on e-signature and the United Nations Convention on the Use of Electronic Communications in International Contracts. The study describes the technical operation of different offline and online signatures in order to appreciate how e-signatures should be regulated. Through textual analysis, it examines whether regulatory instruments of Lesotho and SADC correctly apply the theories in a way that will render use of e-signatures practicable and their regulation effective. It also examines initiatives on regulation of e-signatures in South Africa, the United States of America and the European Union. The study reveals that the purpose of the signature formality is to promote certainty, prevent fraud and provide evidence of a contract despite the form of signature. Although not perfect, functional equivalence and technology neutrality principles render regulation of electronic signatures effective since rules that align with them promote equivalence of legal treatment between offline and online signatures. Consequently, the UNCITRAL's Convention reflects that ordinary e-signatures can meet purposes of the signature formality where appropriate if they observe its functional equivalence criteria. However, the reliability of such electronic signatures is a question of evidence as is the case in offline contracts. Thus, soft laws on electronic evidence must complement the e-signature rules to ensure equivalent legal treatment of signatures. The study reveals that the Lesotho instruments do not fully align with the regulatory principles whereas the SADC instrument closely aligns with them. To different extents, these instruments do not adequately address the problems of users and may inhibit the growth of e-commerce. It further found that the instruments erroneously exclude certain matters such as wills from e-signature application while they correctly exclude others such as negotiable instruments from e-signature application. Lastly it found that the UNCITRAL convention and the US instruments provide better models for effective regulation of e-signatures. By implementing amendments suggested by this study, Lesotho and SADC will address the challenges faced by e-commerce users and make the use of e-signatures feasible for all. Consequently, the instruments will effectively increase the growth of e-commerce and in turn enhance the development of socio economic growth of the SADC region.
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    Apartheid now : the private lives of others
    (2009) Friedman, Nick; Cornell, Drucilla
    My primary concern in this paper is to develop an account of freedom which incorporates within its very definition a moral responsibility to others, and which is therefore automatically limited by the conditions of its own exercise. It is my view that freedom, conceived in this way, leads ineluctably to a mandate to respect and promote the dignity of all others. When this freedom is objectively realised through the law in the form of direct horizontality of human rights, it breathes new life into the substantive legal revolution which took place in South Africa in 1994, and which ultimately led to the Constitution being grounded in the Fundamental principle of human dignity. My paper begins with a brief account of apartheid, focusing particularly on the way in which violent racial oppression was embodied in law. I then proceed to draw on the legal sociology of Niklas Luhmann, whose account of the legal system as a normatively closed, self-referential system produces two important insights for using the law as a tool for social justice. First, Luhrnam-1's conception of how societal sub-systems, including the law, feed off one another's complexity to generate new operations shows us that the deeply systemic nature of South Africa's socio-economic problems can be sourced in the deeply systemic nature of the apartheid laws which produced them. Vi/hat this means for us now is that the legal system as a whole cannot merely adopt a stance of neutrality and formal equality in the hope that this will produce a more equal and just society; rather, the entire legal system must make positive moves, most notably in the form of direct horizontality, to counter the ongoing effect of the morally bankrupt laws of the past. Luhmann's second insight is that the law is not inherently grounded in ethical principles, which means that the legal system often operates with harsh results for poor and disadvantaged South Africans. What this means then, is that we must find a way for the law to continually transcend itself and ground itself in substantive ethical principles, even if this endangers the continued existence of the law as a relatively autonomous, operatively closed system. My paper then proceeds to develop an account of freedom which promotes this sort of transcendence in the law. This account proceeds, in the first place, by explaining Immanuel Kant's defence of the possibility of our free will. Kant showed us that, whilst we cannot know ourselves definitively free, we can and indeed must posit ourselves as free in order to live up to the aspirations of our humanity. Kant shows further that positing ourselves as free requires that we exercise our freedom in the only meaningful way we can, which is to determine our free will on the basis of a moral law we lay down for ourselves and others. Secondly, my account draws on the work of Georg Hegel to show that freedom not only consists in relationships of mutual recognition between independent and free beings, but that we must objectively realise this freedom in our laws and institutions if it is to have any meaning for us at all, and if we are fully to live up to the demands of our free and rational nature. After having developed my account of freedom as morality in the law, I explain the true nature of direct horizontality both in theory and in practice, and show that placing legal duties on individuals to promote the well-being of others through direct horizontality is not only permissible in terms of our Constitution, but is in fact essential if we are to live up to the Constitution's mandate to respect the dignity of all others.
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    Appropriate dispute resolution for women married under customary law in Malawi, with special reference to marital violence
    (2017) Msokera, Chisomo Harvey; Himonga, Chuma
    As a dispute resolution service provider, the justice system ought to provide effective legal remedies to address the justice needs of people. Apart from having the capacity to provide the legal remedies, the system has to be accessible as well. In marital violence disputes, one of the general interests of both the State and the affected individual spouses is to prevent further abuse. Courts offer this remedy, among others, by imposing restraining orders, which are backed up by punitive threats. On the other hand, facilitative mechanisms of dispute resolution such as mediation do not have the power to impose punishment on contemptuous parties. However, facilitative dispute resolution processes encourage joint problem solving, which is desirable in maintaining a workable relationship between spouses. This research argues that in order to ensure optimum access to justice in marital violence disputes there is a need for a dispute resolution system that offers facilitative and advisory mechanisms of dispute resolution alongside court processes. However, in Malawi, rural citizens face the barriers of language and use of English law-orientated procedures when accessing courts. Furthermore, some customary law practices and statutory law provisions encourage the view that mediation in marital violence disputes precludes concurrent access to court remedies. This research explores the challenges which this current approach to marriage dispute resolution poses to women married under customary law. It answers the question whether the justice system, with its English law-orientated procedures and the tenet of mandatory mediation or reconciliation, offers appropriate and effective mechanisms of resolving marital violence disputes to women married under customary law.
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    Are contracts concluded on the Internet valid and enforceable ? An analysis of the Law applicable to contracting on the Internet
    (1999) Archbold, Craig; Hofman, Julien
    The Internet allows contractual negotiations to take place electronically between parties in different national and international jurisdictions. A commercial transaction may be concluded and performed electronically without the parties ever having met or communicated with each other in a formal or informal manner. It is a unique technology that may resemble an instantaneous telex in certain instances, and therefore, may invoke prima facie comparisons to the legal principles relating to telephonic or telex communication. However, in other instances the medium resembles a conventional post box, an analogy that immediately invokes the expedition theory.
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    Ascertainment of customary law: case note on MM v MN - case note
    (2016) Osman, Fatima
    Froneman J states in MM v MN: ‘The process of determining the content of a particular customary norm can present some challenges.’ This case gives rise to a number of issues which have been discussed in some part elsewhere,2 however this note considers the Constitutional Court’s approach in MM v MN in ascertaining customary law and the difficulties the Court experienced. The issue in MM v MN was whether a polygamous customary marriage was validly concluded in Tsonga customary law and in particular, whether the first wife’s consent was required for the subsequent customary marriage. This note scrutinises how the Constitutional Court ascertained the Tsonga customary law on the issue. Tentative conclusions include that innovation and respect for customary law may not be enough for the judgment to stand as good precedent.
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    Aspects of multi-party unjustified enrichment in South African law : a comparison with German law
    (2006) Maxwell, Catherine J; Visser, D P
    In this thesis, aspects of the South African law of multi-party enrichment are compared with the equivalent rules of German law. Against the background of a general comparison of the German and South African law of unjustified enrichment, the following sets of factual circumstances are examined in detail: performance of the obligation of another; performance in accordance with an instruction; and performance in response to a cession. Rather than following a conventional comparative approach (viz where a chapter is devoted to each of the legal systems under consideration, and then comparisons are made in a final, analytical chapter), this thesis is structured as follows: each chapter begins with a comparative treatment of the legal context in which such situations arise. Then various factual permutations are treated, taking into account the German and South African approaches to such practical situations and the underlying policy factors that influence the law. On the basis of this critical evaluation, recommendations are made for the development of South African law.
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    Bekker v Naude: The Supreme Court of Appeal settles the meaning of 'Drafted' in Section 2(3) of the Wills Act, but creates a potential constitutional problem
    (Juta Law, 2004) Paleker, Mohamed
    In Bekker v Naude en andere 2003 (5) SA 173 (SCA) the Supreme Court of Appeal ended the long-raging debate in our courts regarding the meaning of the word 'drafted' in s 2(3) of the Wills Act 7 of 1953. In this note I shall trace the events leading up to the court's decision and discuss certain constitutional issues raised by the judgment.
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    Benefit-sharing of proceeds from minerals: a legal analysis of the shortfalls of Tanzania's new Mining Laws and Regulations on Beneficiation
    (2021) Mussa, Ahmed; Mostert, Hanri; Cramer Richard Henry
    Beneficiation is the process whereby minerals undergo value addition before exportation. For the beneficiation process to be successful, it must be regulated effectively by legislation. The United Republic of Tanzania (Tanzania), being a resource-rich country, enacted new mining laws and regulations to improve mining activities' economic benefits. However, Tanzania continuously fails to realise the intended purpose of the new mining laws and regulations, particularly in respect of benefit sharing. The bottom line is that this country fails to acquire a fair share of its mineral resource benefits. This dissertation argues that the beneficiation of minerals is one way to enhance a host nation's economic benefits from exploiting its mineral resources. The dissertation analyses the new Tanzanian mining laws and regulations on beneficiation and discusses their shortfalls. First, this dissertation inquires how the new Tanzanian mining laws and regulations promoted minerals' beneficiation as a benefit-sharing enhancement mechanism. Second, this dissertation inquires how Tanzania can improve these laws to ensure an increased share of benefits from mineral activities. This dissertation argues that the new Tanzanian mining laws and regulations have shortfalls and practical challenges on beneficiation. This dissertation offers recommendations to the Tanzanian government to carry out beneficiation to develop Tanzania and its citizens.
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    The best interests of the child : a critical evaluation of how the South Africa court system is failing to use section 7 of the Children's Act accordingly in divorce proceedings
    (2016) Sisilana, Ziphokazi Dimpho; Barratt, Amanda
    South Africa has a history of human rights atrocities that have created an urgency to attend to the previously marginalised and vulnerable groups of society. The Constitution of the state as well as other international treaties have created provisions that entrench the commitment to protect the child. This has been done through the inclusion of the 'best interests of the child' principle in the instruments. This study examines the development of the 'best interests' of the child. Furthermore, it analyses how and why the principle developed in the international and national context. The purpose is to come to the findings that the newly introduced Children's Act has created a better scope of protection than the previous common law precedent. The leading component of the study is criticising the method of the application of the 'best interests' of the child principle in South Africa. The author will specifically focus of section 7 of the Children's Act and prove why the courts should be applying this provision in child-related cases.