Browsing by Subject "Private Law"
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- ItemOpen AccessA company is a company because of other people: corporate social responsibility and the constitution(2009) Cockburn, Alexandra; Cornell, DrucillaThe 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.
- ItemOpen AccessA 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 MonicaMining 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.
- ItemOpen AccessA Missed Opportunity: The Rhetoric of Social Cohesion in Parliamentary Debates - 1994 – 2014(2022) Rahman, Zarina; Salazar, Ph-JIntroduction: 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.
- ItemOpen AccessAdjudication of child relocation disputes in South Africa(2021) Marumoagae, Motseotsile Clement; Barratt, AmandaThis 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.
- ItemOpen AccessAn 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, ChumaJudges 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.
- ItemOpen AccessAn analysis of construction related contractual issues (risk, time and claim related) in the context of the construction related contractual obligations of the contractor and the employer in fidic yellow (plant and design-build) general conditions of(2009) Du Toit, Hendrick Cornelius Benjamin; Christie, RichardIncludes abstract. Includes bibliographical references (leaves 157-169).
- ItemOpen AccessApartheid now : the private lives of others(2009) Friedman, Nick; Cornell, DrucillaMy 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.
- ItemOpen AccessBenefit-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 HenryBeneficiation 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.
- ItemOpen AccessBias in administrative decision making: focusing on local government(1997) Smit, Henrietta Augusta; Corder, HughThe Centre for Local Government Training, Western Cape, has been running a training/orientation programme for local government councillors since the beginning of 1996. ' As part of this programme, I have had the opportunity to conduct the training of a basic module on local government and administrative law for several transitional local councils. From the numerous questions asked in this regard, it soon became clear that many councillors were uncertain as to when they had to recuse themselves from council meetings on the grounds of bias, or a possibility of bias. Not surprisingly, as the test for bias in non-judicial administrative decision making is far from clear, even to lawyers, many councillors appeared to have difficulty in applying the test to their personal circumstances. It is hoped that this dissertation, in shortened and simplified form, can serve as a practical guide to councillors in this regard. After all, prevention is better than cure, and any unnecessary court proceedings that can be avoided, will be saving the ratepayers thousands of rands. At the outset, the rules of natural justice will be briefly discussed, as well as section 33 of the Constitution of the Republic of South Africa, no 108 of 1996. This will be followed by a detailed discussion of the rule against bias: including the test to be applied; the grounds for the appearance of disqualifying bias illustrated by a discussion of case law; the issue of departmental bias; the consequences of impermissible bias; and the doctrine of necessity. The focus will then move to local government, and the relevant legislation as expounded by the courts. Finally, the consequences of a biased decision in local government will be looked at, and the constitutionality of certain sections of the local government ordinances questioned.
- ItemOpen AccessThe change of position defence in comparative perspective(2009) Jorge, Aimite; Visser, Daniel PThis work examines the change-of-position (loss of enrichment) defence comparatively in five jurisdictions, namely South Africa, Brazil, England Canada and USA. It advances a three-part argument which contends, first, that when a legal system opts for a general enrichment principle, it must equally limit it with defences. Secondly, that once the limiting mechanisms are chosen, the system must demarcate their contours and establish the inevitable exceptions. Thirdly, that legal system, as a consequence, must also decide whether to require a symmetric ‘gain-loss’ situation, i.e., whether to insist that the measure of recovery be limited by the plaintiff’s loss. If it chooses a symmetry ‘gainloss’, that system might face difficulties avoiding a passing on defence, as the reverse face of change-of-position on the plaintiff’s side, thereby potentially undermining indirectly the principle of legality. If it departs from that symmetry, the passing on defence may ‘normatively’ be ignored, unless for policy reasons it opts to have it. The study concludes that South Africa is bound to adopt explicitly a general principle of unjustified enrichment with change of position as the general defence applicable to all unjustified enrichment claims, save to claims arising from failed bilateral agreements. The study recommends that South Africa may give limited recognition to the passing on defence in its private law of unjustified enrichment where policy considerations do not militate against its application.
- ItemOpen AccessThe creation of 'a world after its own image': a genealogy of transparency(2017) Adams, Rachel Margaret; Barnard-Naudé, JacoThis thesis concerns the rise of transparency as a discursive fact of modern society. It seeks to understand both why and how the concept has come to be dominant within global neoliberal capitalism. From governments and political parties, to businesses and non-profit organisations, diverse institutions across the globe are embracing 'transparency'. Yet, despite its prominence, transparency remains vague and undefined, with scholarship largely devoted to expressing its merits and exploring ways to strengthen its practice. This has allowed transparency to gain its discursive power and, eventually, to become dominant. I turn to the work of Michel Foucault to problematise the transparency discourse with a view to unravel the effects of its discursive power. Through a Foucaultian critique, I come to read transparency as a depoliticising régime of truth ‒ one that is part and parcel of the Western will-to-power of neoliberalism, which excludes and, within this exclusion, contains, other realities. I identify transparency as an elusive and abstract metaphor, while defining it as a discursive practice of 'making visible'. My analysis follows the Foucaultian lines of archaeology, discourse, and governmentality, drawing these analytical strands together into a genealogy of transparency. The thesis notes the historical arrival of transparency within an ocularcentric episteme of the Western Enlightenment which privileges ideas of visibility ‒ an episteme from which neoliberalism also arises. I continue to trace the proselytisation of transparency upon the Global South, and its de-legitimisation of other forms of governance. The analysis then explores how transparency works within a dispositif (a relational field of power) of the current neoliberalist moment, creating a depoliticising illusion of a society that can be seen, known and understood. Further, I discuss how transparency is seeking to produce transparent subjects who are made visible to the disciplining powers of its discourse. In conclusion, my enquiry raises questions about an affinity between transparency and a hegemonic neo-colonial project to fashion a world in its own image: in the image of whiteness – a homogenous and de-politicised centre from which all else 'deviates'. Yet, I note a profound paradox at play. For transparency signals a marked absence, a paradoxical invisibility. Thus, as it seeks to create a world after its own image, it is in fact working towards its own inevitable unworking and absence.
- ItemOpen AccessCriminalising cannabis in South Africa: a history and post-Prince discussion(2021) Weihrauch, Ronja; Omar, JameelahThis thesis circles around the history of the criminalisation of cannabis as well as its decriminalisation around 100 years later. While dagga was cultivated and used by the indigenous tribes long before the first settlers arrived and even remained a legal substance during the colonial period, with the implementation of the first national legislation in 1922, the long history of harsh punishments began. Relating the harsh legislation on dagga to its estimated risks, I ultimately confirm dagga to be the black sheep among drugs, having experienced a racial prohibition. In September 2018, the Constitutional Court partially decriminalised dagga, due to the inconsistency of certain regulations prohibiting the use, possession, and cultivation of dagga with the right to privacy as referenced from section 14 of the Constitution. Emphasising the significant and practical impact of this judgement, possibly positive effects of the decision as well as the newly introduced Cannabis for Private Purposes Bill on the desperately overwhelmed criminal justice system are examined. Concluding, I find that the discourse around dagga most certainly is far from complete but that we have to continue conducting it. Because if history teaches us one thing it is that dagga is here to stay.
- ItemOpen AccessExploring potential reforms to address the high costs of medical malpractice litigation in South Africa(2022) Sarfo-Adomah, Amma; Price, AlistairFor many years, medical malpractice claims have threatened the effective governance of health care sectors the world over. South Africa is not exempt from the effects of this phenomenon. The effects of increasing medical malpractice claims and their associated costs threaten the effective governance of the private and public health care sectors, which results in a vicious cycle of resource depletion, poor service delivery and constantly increasing rates of medical malpractice incidents. This research aims to add to the body of work in South Africa concerning the adverse effects of medical malpractice claims. This dissertation provides a theoretical discussion on whether periodic payments and alternative dispute resolution are satisfactory responses to combat both the rising cost of damages and the procedural backlogs present within the law of delict and medical malpractice litigation in South Africa to achieve comprehensive reform in the law of delict. Ultimately, this dissertation examines the practical legal issues that have led to the current medical malpractice crisis in South Africa. The dissertation examines the role of aspirational health care policies, goals and agendas (specifically section 27 of the Constitution of the Republic of South Africa) that have been implemented on a national level, and it also examines the ability to implement comprehensive reform to address the medical malpractice crisis to hopefully break the vicious cycle that is keeping South Africa from achieving its national and constitutional health care goals.
- ItemOpen AccessFreedom, dignity and the spirit of the revolution : an Arendtian perspective on the future of human rights in South Africa(2009) Donenwirth, Ian; Barnard-Naudé, JacoFourteen years have passed since the first democratic election in South Africa and twelve since the enactment of the Bill of Rights and the final Constitution. In that time period, the way South Africa has been perceived both domestically and abroad has fluctuated greatly.
- ItemOpen AccessFundamental change of circumstances in contract law(2010) Hutchison, Andrew; Naudé, Tjakie; Barnard-Naudé, JacoParties to a contract base their consensus on the facts known to them at the time of contracting - should there be an unforeseen change in these circumstances, it may no longer be just for one party to enforce the agreement against the other. Because the losses and gains consequent upon a change in circumstances occur by chance, it is not fair to place the resultant burden on one party alone.
- ItemOpen AccessIn Defence of the Doctrine of Common Purpose(2021) Willis-Smith, Catherine Tara; Schwikkard, Pamela JaneThe doctrine of common purpose has been subject to much criticism, especially concerning its use under apartheid. However, the doctrine predates the apartheid era and I argue that it should now be recognised as a tool to achieve justice. The constitutionality of the doctrine was confirmed in Thebus and Another v S 2003 (6) SA 505 (CC). Despite agreeing with the outcome, it is my view that the judgment would have been stronger had the Court acknowledged that, by dispensing with the requirement of causation, the doctrine must be subjected to a proportionality inquiry to determine whether there was ‘just cause' to deprive the appellants of their freedom. I argue that depriving persons who engage in joint criminal activity of their freedom is just as it is necessary to ensure crime control and safety in communities and there are no effective less restrictive means available to achieve this purpose. While misapplication of the doctrine is a legitimate concern, this does not make the doctrine itself unjust. It is incumbent upon courts to scrutinise the evidence against each accused and only convict them under the doctrine where a common purpose can be proved. The recent Constitutional Court judgment in Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC) expresses the importance of the doctrine in combating crimes (especially those of a sexual nature) committed by persons acting in concert. The doctrine ensures prosecution of collective criminal activity, and liability thereunder can be avoided where an accused effectively dissociates from a common purpose. It is submitted that the doctrine is a proportionate means to achieve justice and is in fact necessary in a country like South Africa, ravaged by high levels of collective criminal activity.
- ItemOpen AccessIntellectual property strategy : a comparative business perspective considering China, Japan, USA and certain European jurisdictions(2010) Kleyn, Martha MagdalenaThis study is limited to technology based companies and transactions, but it provides a basic overview of the changes in intellectual property laws in jurisdictions relevant to the topic of this thesis, and in particularly addresses the impact on Chinese and Japanese laws due to TRIPS and WTO.
- ItemOpen AccessJust joking: jest as a defence to defamation(2023) Thompson, Simon; Boonzaier, LeoThe South African law of defamation seeks to balance the plaintiff's right to reputation against the defendant's right to freedom of expression. Humour complicates this balance because its appreciation is hyper context-dependent and subjective, rendering the line between serious defamatory statements of fact and non-serious jokes difficult to draw. This dissertation discusses the ways in which the South African law of defamation regulates humorous statements, paying particular attention to the element of defamatoriness and the defences to an action for defamation. It argues that superiority humour, which is funny because it belittles the plaintiff, is being unduly curtailed by the courts' erroneous application of a flawed test for defamatoriness based on the plaintiff's mere exposure to ridicule. The undesirable result is that the defendant will be held liable for superiority humour even in those instances where the plaintiff has not been defamed. It also argues that humour should receive greater protection under the defences available to the defendant in an action for defamation, particularly the defence of qualified privilege.
- ItemOpen AccessThe law is a factish(2016) Wink, James; Barnard-Naudé, JacoDrawing upon the work of Bruno Latour, this dissertation defends the thesis that the law is a factish: an indivisible blend of social and natural reality. The dissertation develops, in Latour's terms, a "non-modern" framework from which it draws, in turn, the philosophical foundations for a theory of factish law. This framework is presented as a paradoxical model of understanding, which situates the law within a broader understanding of reality. The model allows for several distinctions of modern analytical philosophy to be breached, without succumbing to a post-modern paralysis of thought. Applied within jurisprudence, it allows for an account of the law as factish that avoids the clash between positivism and natural law, preferring instead to draw upon insights from each tradition. This factish understanding of the law founds several related observations that together constitute the formative steps towards a theory of factish law. Instead of viewing the law as completely unique, the aspiration towards inviolability is identified as a central attribute of law, shared by actors as diverse as the laws of physics and the laws of the State, whilst the absence of this aspiration from customary law distinguishes it from the law without needing to create an implicit hierarchy of normative systems. Having explicated factish law, the dissertation moves to a proposed model of factish legality, drawing upon the model of paradoxical understanding, in order to explain the process by which the law is created. Alternate understandings of the rule of law and the separation of powers are posited in accordance with this model, as opposed to the dominant views expressed by South African jurists. Having established some of the theoretical commitments of factish law, the dissertation then focuses on the question of justifying the law in South Africa. In the course of the argument, the relationship between law and violence, the distortionary effects of South Africa‟s celebrated Bill of Rights and the contemporary demand for "African" South African law are considered and critiqued.
- ItemOpen AccessLegal Malpractice and the Disappointed Beneficiary under English and German Law(2000) Demuth, Michael; Hutchison, DaleThe matter of this survey is the so-called disappointed-beneficiary cases. In these cases an intended beneficiary of a will suffers a loss, because the will is rendered invalid due to legal malpractice of the will-preparing lawyer. There are several difficult problems contained in these cases. The problems shall be examined by comparing the solutions for these cases under English and under German law. - As will be seen below, policy-considerations form the core of the leading court decisions dealing with that problem in England as well as in Germany because no satisfactory theoretical solution to the problem is been found yet. But in both jurisdictions it seems that the courts and writers concerned with these cases seem to tend to the opinion that the policy reasons are speaking for a solution in which the lawyer is held liable to the disappointed beneficiary. Since the theoretical problems are still not solved, these policy arguments are of crucial importance in the disappointed-beneficiary cases. Next to a survey of the conceptual issues it shall therefore be tried to examine these policy arguments carefully.
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