Browsing by Subject "Law"
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- ItemOpen AccessAffirmative action: a comparative perspective(1997) Gerber, Roland; Kalula, EThe 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.
- ItemOpen AccessAgreements to agree: can there ever be an enforceable duty to negotiate in good faith?(Juta, 2011-06-01) Hutchison, AndrewParties 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.
- ItemOpen AccessAlternative dispute resolution in Intellectual Property Law: a growing need for a viable alternative to court litigation(2013) Richardson, Robin Kieron; Tong, Lee-AnnThe 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.
- ItemOpen AccessAn 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, JenniferSouth 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.
- ItemOpen AccessAn 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, GinaClimate 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.
- ItemOpen AccessAnalysis on the Administration and Governance of the South African Case Docket(2018) Moonsamy, Kameshwhri; Van Der Spuy, ElrenaThe 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?
- ItemOpen AccessApplication program interfaces and the law of copyright in South Africa: a proposal for an optimal approach(2018) Futshane, Azola Siphe; Tong, Lee-AnnApplication 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.
- ItemOpen AccessAspects of multi-party unjustified enrichment in South African law : a comparison with German law(2006) Maxwell, Catherine J; Visser, D PIn 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.
- ItemOpen AccessCasting 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, JanThe 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.
- ItemOpen AccessChallengers posed by electronic commerce to certain traditional concept in international tax law(1998) Malcolm, GraemeThere has been much focus and discussion in the past few years regarding the potential impact which electronic commerce could have on the existing fiscal regimes, both from a domestic and an international perspective. It is against this background that I elected to research and present a dissertation on the implications of electronic commerce on certain aspects of international fiscal law. To give a more balanced perspective, I decided to add a section on other direct fiscal implications of electronic commerce, particularly from the perspective of fiscal administrations. The paper is therefore divided into two sections. Had I know the scope of the assignment which lay ahead, I may have perhaps re-evaluated to merits of embarking thereon. The principle difficulty in researching this topic, · is the relative infancy of electronic commerce, and the corresponding shortage of established literature on the topic, particularly in the field of fiscal law. I found myself having to turn to the very medium of the Internet to locate contemporary literature on the subject and to find out what the international fiscal world was doing to deal with this new business form. For this reason, you will find references in the footnoted to certain web sites, which was a first for me. What complicates matters, is the speed at which technology is developing, and as the Internet and electronic commerce expand on the back of this technology, so the implications thereof develop at an alarming pace. I found that various tax administrations, most notably those of the Unite States of American and Australia have brought out policy documents on electronic commerce. The Organization for Economic Cooperation and Development has held a convention on electronic commerce at Turku, Finland, and a vast amount of literature was submitted by various governments and other interest groups for discussion at the convention. There has been a proliferation of articles written by various international tax bodies, such as the International Tax Organization as well as well known academics in the field of international fiscal law. In the preparation of this paper I have drawn from these various sources, in an attempt to put down in a crystallized form, the various view points. This has been no easy task. There are, in addition, many questions, but not many answers to these questions. This reflects the international stance on electronic commerce. There is a growing awareness of the issues, but the solutions appear to be harder to find.
- ItemRestrictedChange of circumstances in contract law: The clausula rebus sic stantibus(LexisNexis, 2009-03-01) Hutchison, AndrewA common problem in contract law occurs when a supervening change of circumstances impacts upon contractual relations. Although performance does not become impossible, it may become more difficult. Indeed, the whole basis on which consent was originally based may fall away. In medieval times the impact of changed circumstances on a contract was mitigated by an implied condition, which reserved the right of a contracting party to withdraw from that contract if he or she would never have promised with hindsight of the altered circumstances. This doctrine came to be known as the clausula rebus sic stantibus. This article will trace the life of the clausula doctrine, from its origins in Roman moral philosophy, through canon law and the writings of theologians, to its arrival as a fully fledged doctrine in civil law. While change of circumstances remains a problem in contract today and is recognised as a ground for voiding – or even intervening in – contracts in some jurisdictions, it is not recognised in others, such as South Africa. This is due largely to a concern for certainty in contract, which caused the demise of the clausula doctrine in later years. This article will end with the fall from favour of this concept in the age of codification.
- ItemOpen Access"Children should be seen and not heard": a re-evaluation of certain ancient rules of evidence and procedure that discriminate against the abused child(1999) Berg, Ronel; Van Zyl Smit, D"At the southern tip of the continent of Africa, a rich reward is in the making. This reward will not be measured in money. It will and must be measured by the happiness and welfare of the children, at once the most vulnerable citizens in any society and the greatest of our treasures. The children must, at last, play in the open veld, no longer tortured by the pangs of hunger, or ravaged by disease, or threatened with the scourge of ignorance, molestation and abuse, and no longer required to engage in deeds whose gravity exceeds the demands of their tender years. In front of this distinguished audience, we commit the new South Africa to the relentless pursuit of the purposes defined in the World Declaration on the Survival, Protection and Development of the Child."
- ItemOpen AccessCommunity based mental health care: a necessity for realising the right to independent living and community inclusion of persons with mental disabilities in Uganda(2023) Atim, Patricia; Barratt, AmandaUsing a purely doctrinal legal analysis, the thesis advocates for the provision of community based mental health care as a key strategy in promoting the realisation of the right to independent living and community inclusion for persons with mental disabilities (PWMDs) in Uganda. Uganda ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRDP) on the 25th September 2008 without reservations following its adoption in 2006. This is in addition to earlier undertakings in a number of preceding international and regional human rights treaties that guaranteed the rights of persons with disabilities (PWDs). Prior to the ratification of the UNCRPD, Uganda's also had national progressive legal framework, like the Constitution of the Republic of Uganda, 1995 and the Person with Disability Act 2006 (now Persons with Disabilities Act 2020) that provided meaningful safeguards towards the protection of the rights of PWDs. Despite these commendable legislative gains, the thesis contends that Uganda is still largely premised in the medical model of disability and far from tangibly attaining the aspirations set out in the UNCRPD and its paradigm shift to the social and human rights model of disability. The recently enacted Mental Health Act 2019 though progressive still falls short of streamlining the provision of community based mental health care to address the long standing practice of institutionalisation of PWMDs in mental health facilities and prisons. The social and environmental barriers manifested in negative attitudes, stigma and discrimination are characteristic of the populace. Institutionalisation, isolation and segregation of PWMDs in violation of Article 19 of the UNCRPD and other related articles is evidently persistent. To exacerbate the situation, Uganda has not yet conceived a plan to design an independent or community living strategy or policy for her citizens with mental disabilities.
- ItemOpen AccessA critical analysis of the impact of the Bill of Rights on punishment in Malawi(2015) Gumboh, Esther; Chirwa, Danwood MzikengeMalawi's penal regime has a long history of retributive and deterrent punishment and unfair trials. In the absence of a constitutional set up that recognised human rights and driven by the need to maintain colonial authority, punishment during the colonial period was largely premised on retribution and deterrence. The one-party regime that took over after independence was characterised by gross violation of human rights. The adoption of the Constitution in 1994 ushered in a more humane regime of punishment premised on human rights. Complemented by international law, the Bill of Rights has several provisions which clearly intend to create a penal system that is consistent with international standards. This study examines the extent to which punishment in Malawi reflects international and constitutional standards regarding the aims of punishment, the forms of punishment, and post-sentencing procedures. In answering this question, the study investigates whether, over 20 years after the adoption of the Constitution, Malawi has realised the promises of the Bill of Rights for punishment. It therefore analyses the aims of punishment, the forms of punishment, and release procedures to determine if they comply with Constitution. The findings of this thesis reveal that while some progress has been made in aligning the penal regime with constitutional and international standards, there are some aspects of punishment that are in conflict with these standards. The study proposes some solutions to address these gaps.
- ItemOpen AccessDanger and death: organisational and occupational responses to the murder of police in South Africa - a case study(2018) Perkins, Gráinne; Van Der Spuy, Elrena; Moult, KelleyDanger has long been assumed a critical feature of the occupational identity of police officials. Much of the scholarly literature on the topic has been dominated by research originating in Europe and the United States. This study draws inspiration from the literature of the global North but investigates danger and death in a Southern locality. South Africa provides a case study for an exploration of danger and death as perceived, experienced and acted upon by a police institution with long-standing paramilitary origins and one that continues to confront high rates of violent crime in contemporary South Africa. In comparative terms South Africa continues to exhibit high rates of police homicide. Research into the context within which such homicides occur, the associative factors that accompany danger and death and the impact thereof on subcultural identity and operational responses remain under-investigated. This thesis attempts to fill this gap by examining how danger and death are perceived, experienced and acted upon by police officials across three units in a police station located in an urban settlement situated on the fringe of Cape Town. The inquiry draws on the conceptual work of Michel Foucault, Pierre Bourdieu and Theodore Sarbin, and utilises both quantitative and qualitative research methods. An analysis of investigative files of police murders in the Western Cape combined with observation of memorial services and extensive participant observation of three police units in a high-crime area of urban settlement, yielded rich data. The research concludes that police construct danger as much as danger, as an objective reality, shapes the police’s experience of danger and their responses to danger. Danger can be said to have both an objective and subjective reality – it is at once constituted and constitutive. The findings illustrate that danger is given material effect through risk reduction strategies; that danger is dramatised through its memorialisation and that danger is normalised and routinised in everyday police practices. Responses to danger and police murder vary from formal or organisational to informal or occupational responses. The relationship between organisational (formal) responses and occupational (informal) responses is complex - there is evidence of both overlap and contradiction to be found in that relationship.
- ItemOpen Access“Deadlock Provisions in Equity Joint Venture Agreements”(2018) Scherer, John-Patrick; Yeats, JacquelineThe dissertation “Deadlock Provisions in Equity Joint Venture Agreements” gives a comprehensive overview and a detailed analysis of the existing contracting possibilities addressing conflicts between the partners of an equity joint venture which cannot dissolved by them. To understand the variety of such deadlock provisions and their effects on the relationship between the joint venture partners, reaching from provisions which preserve the joint cooperation (preservation mechanisms) to provisions which force the exit of, at least, one partner from the joint company (exit mechanisms), are the key points of the dissertation. Given such variety of deadlock provisions and their possible combinations, a comprehensive overview and a detailed analysis including a comparison of such clauses will support future joint venture partners to decide whether and, if yes, what types of deadlock provisions are suitable for their joint venture and should, therefore, be included in the joint venture agreement. Previous work has failed to give such a comprehensive overview and analysis of deadlock provisions consisting of a description of the different types of provisions, an explanation of their effects, and the provision of the respective example clauses. After a short description of the various types of joint ventures and the structure of an equity joint venture, the dissertation examines on the basis of example clauses preservation mechanisms and exit mechanisms typically included in equity joint venture agreements. The complexity of the different deadlock provisions, in particular the combination of preservation mechanisms and exit mechanisms, but also the question what types of disputes between the joint venture partners should be defined as “deadlocks” triggering such procedures require that joint venture partners understand the effects of drafting the joint venture agreement, in particular the inclusion of deadlock provisions, when they are entering into a joint venture. The dissertation provides the joint venture partners with a guide to cut through such complexity and to understand how the joint venture agreement should be drafted for their joint cooperation.
- ItemOpen AccessThe demise of revolutionary politics and the rise of terror? Assessing Hannah Arendt's hypothesis of the 'social question' in post-apartheid South Africa(2012) Gastrow, Vanya; Barnard-Naudé, JacoIncludes abstract. Includes bibliographical references.
- ItemOpen AccessThe doctrine of frustration: A solution to the problem of changed circumstances in South African contract law?(Juta, 2010-03-01) Hutchison, AndrewThe South African law of contract contains a lacuna in that it addresses only the narrow issue of supervening impossibility and not the broader problem of supervening change of circumstances. Comparative study is illuminating in this regard: many other leading Western legal systems employ a doctrine of changed circumstances. One such example is English law. While this system is more conservative than, for example, the equivalent US law or the model rules of international trade as contained in the Unidroit Principles of International Commercial Contracts, it offers a broad approach of discharge where there has been a “radical change in the obligation”. This feature of English law has been used in several past South African decisions to offer a solution to the lack of a doctrine to deal with changed circumstances in this country. The question needs to be asked what the status of these precedents is and in particular whether the English law of frustration is compatible with the South African common law. The answer is that there are fundamental differences between these two systems and that while English law provides a useful comparative study, in itself it is not the ideal solution to South Africa’s problem.
- ItemOpen AccessE-health, social media and the law in South Africa can ethical concerns in e-health practice be addressed through regulation?(2013) Townsend, Beverley Alice; Ncube, CarolineThis dissertation explores the various legal and ethical difficulties faced by health practitioners and patients alike in the application and practice of ehealth. These include informed consent, the relationship between the doctor and patient, accuracy of online content, confidentiality, privacy, data security and licensure. The existing and proposed legislation in place in South Africa and internationally to potentially address these issues is discussed. The broader question that is posed is whether greater e-health regulation is required in a developing country such as South Africa and if so what the regulations should address.
- ItemOpen AccessEliminating child labour in South Africa: legislation, education and non governmental organisation strategies(1998) Ntloko, Nomfundo; Kalula, EvanceThe interest and concern around the issue of child labour has been growing in the past. few years throughout the world. With all that has happened in South Africa, with the transition to a democratically elected government, the is a need for us to focus on all the issues affecting our country in order to make the democracy real for the person in the street. With the present government focusing on improving the conditions under which children live, the is a responsibility on everybody. The government is presently changing and introducing new legislation. The focus of the legislation is based on the constitution which is the superior law that governs the country. The government hence has an obligation to change those laws which discriminated against any of the South African children and introduce legislation which is in line with the constitution governing the country. The President has put the right of children as one of his Presidential Lead projects and part of the Reconstruction and Development Programme. The role of the Ngo and Cbos is pivotal in working towards a better society for the children of South Africa. However, the information on child labour in South Africa is very inadequate, the very few studies available have been conducted mostly in the agricultural sector. Thus, it is important that more energy be put into conducting research to establish which forms of child labour exist and in which areas it is escalating. Once this has been established it will become easier for the relevant role players to implement measures to counter the increase of child labour This study will then analyze the status of child labour in South Africa, what has been done in the past by legislation and other role players and what the government is at present doing in order for them to meet the standards set out for them in the international documents especially the United Nations Convention on the Right of the Child, bearing in mind that South Africa ratified the convention on the 16 June 1995. This would also be in line with the National Programme of Action which sets out the programme that the country has set itself towards improving the total being of the South African child.