Browsing by Subject "Law"

Now showing 1 - 20 of 128
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    A common maritime regime for the South China Sea
    (1994) Sun, Kuan-Ming; Devine, D J
    The South China Sea is a semi-enclosed sea in two respects. In terms of the geographical reality, the region is readily separable from the waters surrounding it. Moreover, it falls under the 1982 Law of the Sea Convention, which requires littoral states to cooperate in the maritime sphere. At present, a number of problems beset the region.
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    A comparative review of German and South African environmental law with special reference to pollution control
    (1991) Schulze, Ekkehard
    In this, dissertation the principles, instruments · and remedies of German and South African environmental law are examined, as far as they are relevant for pollution control. The purpose is to investigate whether the two countries can learn from each other. In the beginning three principles are discussed which have been formative on German environmental law. The principle of prevention which aims at minimising pollution regardless of its actual hazard and the polluter-pays principle are considered important for an effective environmental law. In general the so-called principle of co-operation appears to have no specific effectivity. Administrative law is then examined. While control the two there procedures are similar in are substantial differences as far pollutioncountries, as judicial control of administrative acts is concerned. In Germany permits for emitters can be challenged by anybody living in the vicinity of a polluting installation; German 2 administrative courts may always reconsider the merits of an administrative .decision. In South Africa concerned citizens may not contest the licence to operate an installation, unless their real or personal rights are infringed; even in the latter case the normally not consider the merits a decision. courts may In Germany environmental impact assessments and public participation are obligatory in many cases. While in South Africa their implementation is left to the discretion of the Minister of Environment Affairs and other ministers involved. The main difference between German and South African criminal law is that the penalties, in particular fines, are far lighter in South Africa. Environmental protection by means of private-law remedies differs considerably in the two countries. The injunction is a primary remedy in Germany which requires the infringement of real or personal rights of the plaintiff. The interdict under South African law is a subsidiary remedy only available where an action for damages does not afford adequate protection; yet the interdict can be based upon the infringement of rights of personality. 3 Under the new UmweltHG (Environmental Liability Act) strict liability and a presumption of causality has been introduced in Germany for major installations and activities. In South Africa the burden of proving a causal relationship is always upon the plaintiff; strict liability has only been implemented for nuclear installations. In Germany various emission fees and tax concessions are in force or under consideration. In South Africa no financial incentives have been introduced to date to promote emission control. Lastly environmental protection by a means of a human right or legislative objective is examined. The intention is to insert the objective into the German constitution that the environment is to be protected. A similar idea of including a legal principle of environmental protection into the Environment Conservation Act has been abandoned in South Africa. It is suggested that pollution fees should be introduced on all levels in order to minimise pollution. Such fees have in principle proved to be effective Tax law should be supplemented by an improved civil, administrative and criminal law. 4 In the field of civil law strict liability and a relaxation advisable. of the burden of proving Public participation procedures causality is should become mandatory in licensing procedures. should be increased considerably. Criminal penalties In Germany it is advisable to introduce the possibility for an injunction if rights of personality are infringed since environmental degradation does not cause violation of real or personal rights.
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    A comparative study of selected aspects of corporate liability of directors under Swiss and South African law
    (2008) Mueller, Dominique Chantal; Rademeyer, Conrad
    Corporate liability of directors is a current issue all over the world due to the financial failures of corporations in the United States and Europe in the past years. The current proceedings in Switzerland against former directors of Swissair, who are accused of having caused the grounding of the airline in October 2001, attracts not only the attention of the Swiss public but also the interest of the neighbouring countries. In this dissertation I will first point out the relevant principles of the Swiss corporate law dealing with liability of directors and then compare the legal situation in Switzerland with the legal situation in South Africa. As the analysis of the whole corporate liability issue would go beyond the scope of this dissertation I will focus on Article 754 of the Swiss Code of Obligations (organ liability) and compare it with the South African grounds of liability of directors for breach of their fiduciary duties and their duty of care and skill.
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    A comparison between the European Court of Justice, the International Court of Justice and the International Tribunal of the Law of the Sea Convention with special emphasis on jurisdiction and enforcement
    (1997) Blum, Jan Burkhard; Devine, D J
    On May 9, 1950 Robert Schuman, the French Foreign Minister, announced his proposal to place the whole French and German steel production under a common High Authority which allowed other European countries the opportunity to participate. In his proposal he took care to provide for the establishment of a court of justice subjecting the new authority to judicial control. One year later, in April, 1951 the European Coal and Steel Treaty (ECSC) was signed in Paris creating the Court of Justice, which was intended to ensure that the new community was governed by democratic principles and the rule of law. Following this, the ratification debates took place in the parliaments of the six countries.
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    A critical analysis of Swaziland's Companies Bill of 2004
    (2006) Vilakazi, Thabsile L R; Larkin, M P
    'Company Law provides the legal basis for one of the most important institutions organizing and galvanizing the economy, corporate business entities'. Professor Kahn Freund wrote; 'Business organization is in a constant state of flux, and the law cannot hope to keep abreast of developments if it ascribes to its own provisions the quality of immutability' '... Company law is in need of constant revision and can never reach a stage of 'finality' It is as a result imperative that the company laws of a country undergo reform consistent with its changing economic, social and technological trends and is in line with international standards.
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    A feminist critique of the prostitution/sex work debate: recommendations for legislative change in South Africa
    (1996) Levick, Margaret Susan; Innes, Laurie Rose
    The fact that the exchange of sexual acts for money no longer solely goes by the name 'prostitution', but is now also being referred to as 'sex work', suggests there is a new body of thought tackling the old perceptions and levels of acceptability that the industry has experienced in the past. The movement towards the acceptance of prostitution as just another legitimate commercial activity is not however without controversy. There remains a complex array of opinion, not least within the Feminist Movement, continually raising sensitive questions about particular core values lying at the heart of the debate. Yet the ideological battlefield which characterizes prostitution does not end with the intellectual sparring of interest groups. It is both a practical and a public interest issue which affects health, welfare and labour policies, municipal zoning and critically, the lifestyles of sex workers themselves. In the past, Cape and Durban city councillors have called for the legalisation of prostitution in South Africa (Argus 2/4/93; 3/4/93; 5/4/93, Cape Times 31/3/93). These calls however came at a time when there was a fairly long history of prohibitive legislative precedent supported by the Christian National Government and coupled with a lack of recourse to a Bill of Rights. Subsequently there has been a call for decriminalisation by the National Women's Coalition - which represents more than eighty women's groups - but the current Minister of Justice, Dullah Omar, has said that the issue would be addressed at "a later stage" (Cape Times 21/5/94). Suggestions for change, such as 'those called for by the Cape Town and Durban city councillors, have almost exclusively focused upon public interest issues without responding to the dangers and abuse that those involved in the profession experience. As an illegal and 'outsider' group to the rest of society, sex workers have not had adequate recourse to the law and this has added to their vulnerability.
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    Access to justice and locus standi in Nigeria: Assessing the impact of the common law approach to locus standi on sexual minorities' human rights
    (2024) Nkopane, Thandolwethu; Lutchman, Salona
    Access to justice is a right guaranteed in all international and regional instruments and domestic constitutions. The full enjoyment, protection, and respect of all fundamental human rights rests on the ability of states to establish effective judicial remedies. The ability of all persons within a state to access these judicial remedies through courts is however limited by procedural rules that do not reflect the modern interpretation of the law. Although access to courts is provided for in several instruments including treaties and state practice, Nigeria has failed to ensure that sexual minorities enjoy their right to access courts. This paper intends to assess the effective implementation of the right to access to courts, particularly for sexual minorities in Nigeria in light of Nigerian courts restrictive approach to locus standi. The research argues that the restrictive interpretation of procedural rules does not facilitate access to justice but violates international human rights. The research draws a clear link between the state obligations under international law to respect, protect and fulfil human rights of sexual minorities and liberally interpreting the law using principles of equality, non-discrimination and effectivity.
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    Affirmative action and the interim constitution
    (1995) Sauerman, Anthony Edward
    The stately inauguration of President Nelson Mandela on 1 O May 1994 sounded the death knell of the longest and most stubborn era of institutionalised racism and inequality known to mankind. The generals who escorted him safely onto the podium will never again receive their orders from a chain of command borne in an exclusively white caucus under the guise of parliamentary sovereignty. The new presidential authority is contained in an Interim Constitution which declares itself to be the supreme law of the Republic (1 ), embodying the concept of constitutional sovereignty for the first time in South Africa. The decisions of Parliament can no longer receive the majoritarian rubber stamp of approval from within its own ranks, but will be tested against the provisions of the Interim Constitution by an independent Constitutional Court. Those which are found to be inconsistent with the provisions of the Interim Constitution will be of no force or effect
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    Affirmative action: a comparative perspective
    (1997) Gerber, Roland; Kalula, E
    The issue of affirmative action is topical world wide, but is of particular relevance to South Africa, which is attempting to end discriminatory employment practices, and to promote employment opportunities for previously disadvantaged groups. The experience of other countries in striving for employment equity is thus of express interest. This study will, of necessity, be restricted to specific areas. It begins by examining several definitions of affirmative action. This is followed by a discussion of the philosophical rationales for and against affirmative action. The examination then centres on selected international experiences of affirmative action. It then turns to the··· implementation of affirmative action in the South African context, from a constitutional·--. and legislative view, looking at the Green Paper on Employment and Occupational Equity, and highlighting the similarities of Canadian employment equity legislation. The practical implementation of affirmative action in South African companies and local government is then explored. Finally, this study concludes with a discussion of the merit principle, as a guiding policy in the implementation of affirmative action, and a critique of the quota and job reservation system.
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    Agreements to agree: can there ever be an enforceable duty to negotiate in good faith?
    (Juta, 2011-06-01) Hutchison, Andrew
    Parties to an agreement may include open terms which leave certain particulars open to future negotiation. The aim of this type of provision is usually to allow for changing circumstances over time or the threshing out of more detailed terms. Conventional drafting practice is to state that these terms are to be negotiated in the future in good faith. What if a party subsequently resists all efforts to reach agreement? Is there a mechanism which will enforce this duty to negotiate? Of course the parties may have inserted their own deadlock-breaking provision – in the absence thereof a court should be able to find its own resolution. This paper will consider proposed methods of enforcement of such a duty with reference to developments in South Africa as well as other countries, particularly the USA and Australia.
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    Alternative dispute resolution in Intellectual Property Law: a growing need for a viable alternative to court litigation
    (2013) Richardson, Robin Kieron; Tong, Lee-Ann
    The need for a viable alternative to court litigation of intellectual property disputes is much needed in modern legal systems. IP court litigation has become expensive, time consuming, and poor decision making has led to unpredictable and inconsistent results. This paper explores the possibility of using alternative methods, such as mediation and arbitration, to resolve complex IP disputes. The paper critiques modern judicial systems and analyses how alternative methods may be better suited to the resolution of IP disputes. Particular attention is paid to the issues present in the South African legal system and what steps are needed to implement a workable and regulated alternative to the High Court system. The paper concludes that alternative dispute mechanisms are well suited to the resolution of IP disputes but that South Africa needs to take progressive steps towards the realisation of such a system.
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    An analysis of foreign statutes dealing with environmental liability with a view to the drawing up and promulgating of an environmental liability statute in South Africa to deal with the legal problems of civil liability for environmental damage
    (1996) de Bruin, Sean; du Bois, Francois
    This essay concerns civil liability for environmental damage and has as its focus, the drawing up of an Environmental Liability statute for South Africa. The approach taken in the essay is largely a comparative one, with topics being approached first from a general perspective and then with reference to various foreign statutes and the approach taken therein to the issues being discussed. The essay begins by analysing the problems with relying on the common law, as it is in South Africa, as a basis for civil liability. This will focus largely on the necessary common law requirements of Fault and Causation, and the particular problems encountered when applied to the area of environmental harm or damage claims. This section will also contain a brief explanation of why it is believed that a statutory form of liability should be introduced as opposed to, for example, allowing the situation to be self-regulated by contractual warranties and/ or indemnities. The essay then considers what the objectives of such a statute should be. The focus here is on whether the goals of Remediation and Prevention-are both attainable within the framework of a single statute and, if so, to what degree. The next section seeks to analyse exactly what the basis of liability for environmental harm or damage should be and how it should be structured in order to overcome the specific problems created by common law liability requirements. The focus here will be on which variant of the regimes broadly referred to as strict liability should be adapted for a prospective South African statute. The essay will examine whether liability should be defined in terms of general principles or rather by reference to certain specific criteria and also what approaches can be discerned to the problem which Causation presents for the potential plaintiff in an environmental liability suit. In both cases the essay will examine the option(s) adapted in various jurisdictions and the success and/ or problems encountered. This section will also cover the possibility of an Information Right for prospective plaintiffs and the desirability and legality of instituting a reverse onus on the defendant in an environmental liability suit. The scope of such a statute forms the content of the following section. The discussion here revolves around how damage to the environmental should be defined. The essay will examine the importance of defining what constitutes damage and will examine a range of options as have been adopted in foreign statutes, analysing their respective strengths and weaknesses. The essay then moves on to discuss what Defences should be available to a defendant charged with liability under the statute. Again, a range of defences shall be examined and the appropriateness and implications of each discussed. The question of who should be able to recover damages as against the various types of harm covered by the statute forms the basis of the next section. This section will focus on the issue of whom, if anyone, should be able to recover for ecological damage, especially with regard to what can be termed, the "unowned environment". Various options will be discussed and their suitability evaluated. The penultimate section of the essay deals with which parties should be held liable under a prospective statute, for harm or damage as covered by such an act. The question of multiple wrongdoers and how to deal with such a situation will be discussed. A comparative study will again be employed, analysing varying approaches taken in foreign jurisdictions. This section will also cover the issue of Lender Liability. The question of how to ensure that defendant's held liable will be able to pay, will also be discussed. The final section of the essay will involve a discussion of certain aspects of Remedial Liability. These will be the Definition of remediation, various Approaches to Remediation, how to ensure compliance with remediation orders and finally, a suggested procedure for remediation. This section will be followed by general conclusions drawn from analyses performed in the body of the essay.
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    An analysis of options for reform of South Africa’s unilateral income tax exemption of foreign pensions, with an emphasis on the cross-border interaction with pensions derived from the United Kingdom and Germany
    (2018) Oliver, Ashley; Hattingh, Johann; Roeleveld, Jennifer
    South Africa, recently reformed the tax policy regarding the taxation a South African resident’s foreign employment income and is in the process of reviewing the tax policy of foreign pensions. The unilateral foreign pension exemption was only meant to be on a temporary basis, but yet uncertainty existed ever since its introduction in 2000 of whether, and for how long, the exemption would be retained that is until 2016. South Africa’s Treasury proposed various reforms to South Africa’s unilateral exemption of foreign employment income in the last two years. The prevalent nexus between the foreign employment income and foreign pension exemptions, is a strong indication that the various reforms considered for the foreign employment exemption may be considered in regards to South Africa’s tax policy reform of foreign pensions. This minor dissertation seeks to answer is what the impact of the proposed future reforms are on the income tax consequences of a SA tax resident’s foreign pension, in light of the recent international trends in the mitigation of double non-taxation. The key finding arising from the research in this minor dissertation is that South African residents currently benefit from double non-taxation of UK pension annuities, UK pension lump sums and lump sums, and a German lump sum arising from a pension commitment prior to 1 January 2005. The enactment of the proposed future reforms would result in United Kingdom pension annuity becoming taxable in South Africa. German pension benefits in the form of an annuity arising from a pension commitment prior to 1 January 2005 and after 31 December 2004 will be taxed either in Germany or South Africa, or both. In the case of a SA resident’s UK lump sum or German lump sum arising from a pension commitment prior to 1 January 2005, a SA resident will continue to benefit from double non-taxation under the proposed future reforms under both the 1973 and 2008 SA-Germany DTC. In the case of a SA resident’s lump sum arising from a pension commitment after 31 December 2004 it will still be taxed in Germany under both the 1973 and 2008 SA-Germany DTC, regardless of the proposed future reforms. Following the analysis of the impact of the proposed future reforms on the income tax consequences of a South African tax resident’s German or United Kingdom pension benefits, this dissertation finally aims to provide recommendations in relation to issues identified in respect of the proposed future reforms, if any.
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    An analysis of Section 11 of the Constitution and 'Stransham-Ford v Minister of Justice': are people permitted to waive the right to life?
    (2023) Mlotshwa, Vanessa; Kohn, Lauren
    Thousands of people around the world seek active euthanasia as a medical means to the alleviation of their incurable pain. This highly contentious medical procedure is not available to South Africans. This thesis explores the High Court Judgment of Stransham-Ford v Minister of Justice, the first case legalising both passive and active euthanasia in South Africa; and the subsequent overturning of that judgment by the Supreme Court of Appeal. This thesis assesses applicable case law and engages the relevant secondary sources of literature to determine if there is a pathway for the legalisation of active euthanasia in South Africa. Furthermore, this thesis conducts a section 36 general limitations examination of the key constitutional rights that govern this matter, including section 11 (right to life), section 10 (right to dignity) and section 12(2) (right to informed consent). Thereafter this thesis reviews the foreign law of jurisdictions where euthanasia has been legalised. This includes an evaluation of Canadian case law which utilised the Canadian Charter of Rights and Freedoms to legalise euthanasia. This Charter was one of the inspirations for the South African Constitution. Finally, the thesis makes provision for medical professionals to object to performing euthanasia based on conscience or religion.
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    An analysis of the anti-avoidance provision section 103 of the South African Income Tax Act 58 of 1962
    (1996) Mponco, Nelisa Phiwokazi; Emslie, T S
    "It is trite law that His Majesty's subjects are free if they can, to make their own arrangements so that their cases may fall outside the scope of the Taxing Acts. They incur no legal penalties and strictly speaking, no moral censure if, having considered the lines drawn by the legislature for the imposition of taxes, they make it their business to walk outside them."1 However, the South African Income Tax Act 58 of 1962 contains a general anti avoidance section, as well as specific anti avoidance sections. The legislature, having observed the growing industry of avoidance, enacted the law to counter tax avoidance. Therefore, the purpose of this dissertation is to analyse the law in guestion and see how the courts interpret the law in order to enforce anti tax avoidance provisions. To motivate this objective, this dissertation will be divided into three parts. Firstly, dealing with general anti-tax avoidance section 103, secondly, sections and finally, interpretation will be looked at. specific anti-avoidance of fiscal legislation will be looked at.
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    An outline and critical assessment of the role of planning laws in the regulatory framework of climate change adaptation in South Africa and Nigeria
    (2018) Afinowi, Olubunmi Ayodele; Glazewski, Jan; Ziervogel, Gina
    Climate change affects the natural and built environment, including all forms of development. The risks of climate change include severe alterations to the normal functioning of communities, including adverse effects on humans, infrastructure, land use, the built and natural environment. Due to these occurring and projected adverse effects, there is the need to develop resilience within communities, especially in areas of particular vulnerability. The point of departure of this research is that planning laws have a role to play in the adapting to, and building of resilience against, climate change. As such the work argues for an integration of climate change considerations into planning, environmental and related laws. The relevant laws will be examined to consider the extent to which they are suited to aid the adaptation process. The research entails a comparative approach through the analysis of planning laws in Nigeria and South Africa. It also involves qualitative empirical research into the effectiveness of planning laws as a means of adaptation to climate change. Planning law in Nigeria is very procedural and is limited to physical planning and ordering of the built environment. South Africa, on the other hand, has integrated sustainable development considerations into her planning legislation and it now encompasses spatial planning, integrated development plans, land use management and others. In both countries, however, there seems to be no express integration of climate change into planning laws, especially at the national level of government. The research also examines the legal aspects of climate change adaptation strategies in both countries. It found that in Nigeria in particular, there is no provision for inter-governmental cooperation to facilitate physical planning or climate adaptation action. In the case of South Africa, there is a well-structured intergovernmental collaboration regarding planning and land use management, which gives some consideration to climate change adaptation. However, the structure for cooperation is still being developed as seen in the draft National Adaptation Strategy and the proposed Climate Change Act. There is a need to reevaluate the relevant laws in both countries, with special consideration to the role of planning in adaptation to the adverse impacts of climate change on the natural and built environment.
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    Analysis on the Administration and Governance of the South African Case Docket
    (2018) Moonsamy, Kameshwhri; Van Der Spuy, Elrena
    The minor dissertation is a desktop literature study on the debates and research on the matter of docket management and administration in South Africa. The purpose of the minor dissertation is to understand the latest developments and trends that have transformed the administration and governance of case dockets globally and particularly in South Africa. A compendium of literature including governmental reports, scholarly journal articles and newspaper reports were utilised as the basis for this minor dissertation. The limitation to this study is primarily the paucity of South African literature on the subject matter as well as data gaps in empirical research. Effective case management has been the focal point for courts facing burgeoning bottlenecks throughout the world. Hence, techniques such as case screening or docket control, judicial intervention, attorney and advocate support, specialisation of courts and the integration of Information and Communications Technology (ICT) have been employed globally to expedite case flow. This research paper will draw on global paradigms and world’s best practices for case docket management from North America, Europe and Namibia. Thereafter the research turns to administrative reform from a South African perspective; what will be examined is the transition from policing practices under the apartheid regime to case docket management under the constitutional dispensation of democratic governance. As part of an Integrated Justice System (IJS) strategy, South African policymakers have drawn from the pool of experience by adopting ICT projects within the Criminal Justice System (CJS), primarily giving rise to the electronic or e-Docket system. The e-Docket system, which is said to take up to at least 10 to 20 years to fully implement, faces its own hurdles and dilemmas, not least as a result of police officials preferring the old traditional paper-based dossiers, thereby resisting the technological movement. In addition to the e-Docket system, the CJS has reeled in principles from the private sector such as outsourcing and New Public Management (NPM) philosophies in order to effectively regulate docket management as well as accelerate court processes. The research problem, which is twofold, first aims at examining case docket reform ie how case dockets have transitioned from the apartheid era to the constitutional dispensation and whether or not this has been effective. This issue will be answered in Chapter Two, in which case chronology will be discussed. The second concerns the adoption and implementation of techniques borrowed from the West, such as the implementation of ICT projects and the success of first world systems in a country like South Africa with a turbulent socio-economic background. This problem will be addressed in Chapters Two and Three in which the eDocket will be introduced and critically examined against South Africa’s CJS strategies. Arguably, the adoption and implementation of Western ideologies and first world best practices in South Africa may not be feasible given the current landscape of constrained and limited resources, both financial and in the field of human capital. Additionally, the climate is further exacerbated by low levels of computer literacy and an overall scarcity of skilled and knowledgeable workers required to operate sophisticated ICT systems. Until the e-Docket system is fully implemented and effectively operational, the labour intensive paper-based dockets will continue to bear negative ramifications including mismanagement: ie negligent docket handling, lost or stolen dockets and the practice of bartering dockets in exchange for gratuities. The latter provides a host of repercussions for the interests of stakeholders including egregious violations of fundamental human rights. The aim of this research is to understand the rationale behind maladministration and ineffective governance of dockets in the democratic era, as well as the effect it has on stakeholders. The research provides recommendations in which the administration of dockets may be adequately regulated. Therefore, police dockets represent much more than a kneejerk reaction to crime; dockets regulate the entry points into the criminal justice system pipeline. South Africa needs to invest in its greatest asset of all − its human capital, by developing and equipping its people to embrace the technological revolution. Have we sunk our heels in too far into the ‘splendor’ of Western ideologies of technology and privatisation or is it time that South African leadership adopts accountability and charters a course with an authentic framework best suited for South African problems?
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    Application program interfaces and the law of copyright in South Africa: a proposal for an optimal approach
    (2018) Futshane, Azola Siphe; Tong, Lee-Ann
    Application Program Interfaces are simple computer programs that enable other pieces of software to call on each other so as to operate in tandem. They are solely designed to perform this singular function, yet they have a significant impact on computer software development. The benefits of Application Program Interfaces include the increased speed and efficiency of computer program development. In essence, Application Program Interfaces enable interoperability between different computer programs that may otherwise have been unable to operate with each other. Developers are saved from the onerous task of having to develop new programs that will be able to work with their own, because the Application Program Interface acts as a catalyst between the different programs, as it were. Due to the function they perform, Application Program Interfaces are essential to computer software development, and are of high economic value. As Application Program Interfaces are computer programs, they are protected under the law of Copyright. This means that developers of Application Program Interfaces are able to exercise exclusive rights in copyright over these pieces of technology. This is problematic in the programming community, where there is a rapidly growing trend towards using and producing open source software. As such, there is a friction created between programmers who seek to use Application Program Interfaces freely, and the copyright owners who seek to derive an economic benefit. There is no controversy as to whether the literal elements of an Application Program Interface may be eligible for copyright or not. There is debate, however, as to whether, and to what extent, the non-literal elements of an Application Program Interface may be eligible for copyright. This debate brings to the fore the age-old idea-expression dichotomy, and the question of what elements constitute an idea or an expression. This paper will investigate the approach to Application Program Interfaces and copyrightability in South Africa, and make proposals as to the approach that ought to be taken. Guidance will be taken from the precedent and legal debates ongoing in other jurisdictions.
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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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    Casting a wider legal fishnet: Assessing opportunities to combat fisheries crime with a focus on the South African abalone poaching and trafficking crisis
    (2018) Herdieckerhoff, Ida; Glazewski, Jan
    The fisheries sector is a fundamental global industry for human prosperity worldwide as fish and fish products are among the most-traded food commodities worldwide. However, the fisheries sector is linked to a high degree of illegality. Fisheries crime is a multifaceted phenomenon – frequently transnational and organised in nature – which comprises a range of various crimes along the fisheries value chain, including corruption, money laundering as well as tax and customs fraud. The abalone poaching and trafficking crisis in South Africa is a prime example of fisheries crime: organised criminal syndicates control the (illegal) lucrative trade of abalone starting from poaching in the coastal waters of South Africa until the abalone ends up in East Asia. The syndicates take advantage of the sensitive socio-economic dynamics in South Africa’s coastal communities for financial gain by recruiting local poachers and using highly organised networks to smuggle abalone to East Asia. The illegal trade in abalone is one significant factor that threatens the species’ survival, thus these criminal syndicates must be disrupted and their activities combated. This dissertation examines legal tools to do so. During the 2nd International Symposium on Fisheries Crime it was pointed out that ‘given the inter-connected and complex nature a successful law enforcement approach to addressing these crimes cannot focus exclusively on one type only; rather, what is required is a coordinated criminal law enforcement response at the domestic and international level that recognises the wide variety of forms fisheries crime can take’1 . This extends beyond the scope of fishing offences and is rooted in the use of all potentially applicable laws. This dissertation examines the applicability of the Marine Living Resources Act 18 of 1998, the Prevention of Organised Crime Act 121 of 1998, the Customs and Excise Act 91 of 1964 as well as the Prevention and Combating of Corrupt Activities Act 12 of 2004 to the abalone and trafficking crisis. The aim is to assess the South African legal framework as well as existing case law to determine how South Africa’s courts have approach the prosecution of fisheries crime to date in order to arrive at suggestions to combat abalone poaching and trafficking in the future.