Browsing by Subject "law"

Now showing 1 - 20 of 63
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    About the constitutionality of mandatory minimum sentences
    (1995) Oppert, Anna; van Zyl Smit, Dirk
    As difficult as the task of reaching a reliable verdict may be, the second half of a criminal court's procedure, that of imposing sentences on those who have been found guilty or who have themselves admitted their guilt raises even more fundamental questions. What are we trying to do, what is the object of this exercise? Traditionally there have been four approaches to the sentencing of an offender which correspond to the four "objects" or "purposes" of sentencing, namely retribution, rehabilitation, deterrence or incapacitation, i.e. the offender should be punished for the crime; the offender should be punished to be given the opportunity to return "onto the right track"; the offender (individual deterrence) or others (general deterrence) should be deterred from committing similar crimes in the future; and, finally, the offender should be incapacitated, i.e. be prevented from repeating crimes.
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    Access to Knowledge in Africa: the role of copyright
    (2010) Armstrong, Chris; de Beer, Jeremy; Kawooya, Dick; Prabhala, Achal; Schonwetter, Tobias
    The emergence of the Internet and the digital world has changed the way people access, produce and share information and knowledge. Yet people in Africa face challenges in accessing scholarly publications, journals and learning materials in general. At the heart of these challenges, and solutions to them, is copyright, the branch of intellectual property rights that covers written and related works. This book will help educators identifying challenges for learning materials access posed by copyright laws in Africa. Some solutions as to how to overcome these challenges are provided.
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    Admiralty law in South Africa: section 6 of the Admiralty Jurisdiction Act - an analysis, comparison and case law examination
    (1999) Stiebel, Mark
    Under South African Admiralty law the Courts are to apply two different systems of law depending upon whether the matter could have been heard under the old jurisdiction held by the Colonial Courts of Admiralty as at 1890. If the matter does involve this old jurisdiction then English law as it was in 1983 must be applied by the Courts to the matter. If the matter involves a new jurisdiction, which was unknown in the old courts, then Roman-Dutch law must be applied to the matter. These dual systems of admiralty have resulted in interesting judicial application, with certain judges correctly applying the statute, while others have ignored or chosen not to follow its directives. This paper investigates how admiralty law has developed in South Africa resulting in the dual system and analyses the mechanism established through legislation. The application through case law of the section is analyzed to discover how the section has been utilized by the South African courts. Thereafter a comparison is made of other jurisdictions with a similar admiralty source to discover how they have resolved the juxtaposition of admiralty law with domestic law. Suggestions for legislative reform are suggested and debated.
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    An analysis of paragraph (c) of the 'gross income' definition and the term 'services rendered'
    (2004) Kramer, Tanya H.; Emslie, T. S.
    The South African tax system operates as a dual system of direct and indirect taxation. Direct taxation is imposed directly on taxpayers be they natural or legal by nature, by imposing tax on the income of those taxpayers. This is known as income tax. Another form of direct taxation is estate duty. By contrast, indirect taxation is where a transaction or consumption, rather than an entity is taxed. An example of this is VAT. The South African Revenue Service currently imposes income tax on individuals, companies and other taxable entities. The legislation in terms of which income tax is imposed is the Income Tax Act 58 of 1962. The income Tax Act is an ever-changing piece of legislation, as each year it is amended to accommodate the changing economic environment as well as the tax proposals put forward by the Minister of Finance. §5 of the Income Tax Act governs the annual payment of tax according to the rates established at the beginning of each year of assessment. This is known as normal tax. The section indicates that tax can be levied against any person or company. The term 'person' is defined in § I of the Act so as to include a deceased estate, an insolvent estate and a trust, and a company, in the same section, is defined to include a close corporation.
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    Can the Kyoto Protocol to the United Nations Framework Convention on Climate Change achieve its ultimate objective?
    (2004) Dalrymple, James; Gibson, John
    Hardly a day goes by without reading, in the national and international media, about new evidence of catastrophic climate change, be it droughts, floods, fires, storms or wildlife extinction. But are we to blame? Are anthropogenic (human-induced) interferences with the climate system causing. climate change? Are the emissions from factories and cars changing the relationship between us and nature? Will we destroy the basic conditions that. have allowed life to thrive on Earth? These are the questions which have caused so much soul-searching amongst people over the past few decades with regard to climate change. It is not within the scope of this paper to prove or disprove the existence of dangerous anthropogenic climate change. What is important from an international environmental law perspective is whether or not the nations of the world believe there is a climate change problem, and if they do what rules must be put in place to deal with the problem. That first significant step towards legally recognising that there is a climate change problem was taken in 1992 with the signing of the United Nations Framework Convention on Climate Change (referred to in this paper as the UNFCCC. or the Convention). This Convention was a direct consequence of scientific evidence, produced by the Intergovernmental Panel on Climate Change (IPCC), showing the devastating effects of dangerous anthropogenic greenhouse gases caught in the atmosphere. A second major step towards legally binding commitments to reducing greenhouse gas emissions was made, after intensive negotiations, in Kyoto, Japan, with the signing of a Protocol to the Framework Convention. The Kyoto Protocol (the Protocol) signed in 1997, is significant because it introduces for the first time, legally binding obligations on developed countries to reduce their emissions of greenhouse gasses. In 1995 the IPCC released a report which concluded that the climate may have already started responding to past emissions. It recommended that, in order to stabilise atmospheric concentrations of greenhouse gases at 1990 levels, it would be necessary to reduce current anthropogenic emissions by 60%. This figure went far beyond the reductions to which even the most environmentally progressive Parties were prepared to commit. So, can the Protocol to the UNFCCC achieve its ultimate objective, which is to stabilise greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous anthropogenic interference with the climate system?
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    Can the State be held accountable for water pollution? A critical analysis of legal alternatives available to prospective litigants
    (2010) Bond-Smith, Marguerite; Feris, Loretta
    Water is considered to be one of the most essential of all natural resources 1 and its importance in the perpetuation of life is incontrovertible. The 'human poverty index' formulated by the United Nations Development Programme, lists a decent standard of living as one of the three essentials for human life, which in turn is determined by, amongst other, access to safe water. Water is one of the key resources determining the health and wealth of a nation resulting in management of the resource to ensure sustainable use being 'vital'.2 The United Nations Committee on Economic, Social and Cultural Rights significantly links the right to water, as a limited natural resource, the enjoyment of health and other human rights by stating that the right to water is indispensable to leading a life in human dignity and is a prerequisite for the realization of other human rights. 3 • Assuming current economic and population growth, it is estimated that by 2030 water supplies will only satisfy 60 percent of global demand and less than 50 percent in developing regions, including South Africa, where water supply is already under stress.4 Blignaut and Van Heerden describe our water situation as 'precarious'. 5 The situation is further exacerbated by the uneven distribution of water which engenders water scarcity, which in turn induces more stringent rules for water use.6 Blignaut and Van Heerden7 state that 'the availability of water of acceptable quality is predicted to be the single greatest and most urgent development constraintfacing South Africa'.
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    Child Soldiers: victims or perpetrators - how they are treated under international law and Sierra Leonean law
    (2007) Baader, Philine; Chirwa, Danwood
    Archbishop Desmond Tutu once said: 'We must not close our eyes to the fact that child soldiers are both victims and perpetrators. They sometimes carry out the most barbaric acts of violence. But no matter what the child is guilty of, the main responsibility lies with us, the adults. There is simply no excuse, no acceptable argument for arming children'.
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    Class actions within the field of environmental law
    (1997) Dannecker, Regula; du Bois, F
    In recent decades an awareness of the need to protect and conserve the environment has spread world wide. Today, environmental law is an important issue of every government and legislature, as well as a concern of many, individuals and environmental groups. Technological and industrial development rule today's societies in growing dimensions. The increasing 'massification', significant for westernised countries, also involve mass accidents and widespread environmental damage or pollution. A single factory, or for instance an oil refinery, can cause toxic fumes polluting the air, and thus causing significant harm to people and the environment. Massification can produce dangerous living or working conditions which demand the mass to become the focal point of change. In general, environmental law has developed a distinct public law character, concerned to protect the environment as a public good. However, civil litigation has some impact on this branch of law as well, either for its direct enforcement or for the redress of environmental and personal damage. With the rise of environmentally concerned individuals as well as associations, and with the increase of mass disasters or man-made hazards adequate remedies have to be found. Out of such incidents, affecting many people either directly or indirectly, new and complex legal situations emerge. Thus, class actions and actions in the public interest have become an important issue in many countries. This paper shall discuss the development of such class actions and the problems accompanying it, focusing in particular on the environmental law field. It will be demonstrated how this phenomenon, particularly strong in the United States, has been approached in the legal realm of different countries, one amongst them the Indian ·case of 'social action litigation'. Eventually, the situation in South Africa, especially in the light of the new Constitution and the new class action device, shall be discussed.
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    Coastal state control over historic wrecks situated on the continental shelf as defined in article 76 of the Law of the Sea Convention 1982
    (1991) Allen, B L
    In this minor dissertation the coastal states rights, jurisdiction and control in respect of wrecks, specifically historic wrecks, situated on the continental shelf are examined in relation to the current state of the law applicable to this area, both customary and conventional. Discussion and argument are developed under the following headings. THE TWILIGHT ZONE This part constitutes the introduction to the subject matter and includes a brief description of the evolution of International Customary Law relating to the continental shelf which resulted in the 1982 Law of the Sea Convention definition which specified rights to natural resources. BOUNDARIES OF THE CONTINENTAL SHELF Area is clarified and distances of outer limit from-baseline (200 nautical miles extending to a possible 350 nautical miles under certain circumstances) is discussed. Necessity for coastal state to inform the Commission on the limits of the Continental Shelf of the limits of its continental shelf beyond 200 nautical miles is noted. Article 303(2) relating to the contiguous zone and historical objects is referred to and the effects of its provisions on the area under examination is discussed. The starting point of the area is 24 nautical miles from the baseline as explained. Mention is also made of the overlapping of the exclusive economic zone with the sea bed and subsoil of the continental shelf and attention is drawn to the provisions of art 59 relating to the settlement of disputes over non attributed rights in the exclusive economic zone.
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    Conflits possibles dans la zone internationale des fonds marins et les eaux et espace aerien surjacents entre etats parties et etats non parties a la Convention des Nations Unies sur le Droit de la Mer
    (1993) Vrancken, Patrick Henri Ghislain
    Dans la prémiere partie de la thése, un certain nombre de questions générales relatives à la création, aux conflits et à la terminaison des régles de droit international public sont étudiées. Cette étude permet de confirmer qu'il n'existe en droit international public positif aucun moyen d'imposer à un Etat une obligation à laquelle il n'a pas consenti. D'autre part, l'analyse du statut actuel de la haute mer est placé dans le contexte de l'extension des appropriations nationales sur les océans. L'étude de ces derniéres permet de situer le régime de la Zone et le principe de liberté de la haute mer dans leur contexte historique et géographique ainsi que de mettre en évidence les éléments fondamentaux gouvernant la dialectique entre nationalisation et internationalisation des espaces marins.
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    Constitutionally damaged: moving courageously beyond common law fictions
    (2026) Barns, Shaun; Barnard-Naude, Jaco
    The principle of subsidiarity is used as a device to co-ordinate different bodies or rules which compete to achieve the same goal. It is a principle which can take on many formulations depending on the context of its application. For this study, the focus will be on the principle of subsidiarity as applied to the different arms of government in South Africa and as used in private law remedies as applied in the public sphere, specifically vicarious liability in delict. These formulations of the principle of subsidiarity are known as institutional subsidiarity and substantive subsidiarity, respectively. Currently institutional subsidiarity in South Africa takes a very broad formulation and is seen as implicit in the Constitution of South Africa when applied to the local, provincial and national spheres of government. When discussed in terms of the three arms of government, namely, the legislature; the executive and the judiciary, institutional subsidiarity is discussed under the broad principle of separation of powers. This study seeks to provide a more specific understanding of the separation of powers by translating it into a spectrum between coordination and integrity. It will use examples of tools that courts currently use to co-ordinate and co-operate with other branches. It will also explain when the courts can act without cooperation with the other branches on the other end of the spectrum called integrity. The metaphorical spectrum is useful for the courts as it helps determine what tools are available to them to exercise their constitutional function and provides a link between their institutional purpose and the related rules of substantive subsidiarity. The primary focus of the study will be substantive subsidiarity and specifically the relationship between the common law and the Constitution. The study will use cases involving state vicarious liability in delict, specifically involving the South African Police Service, to show how the previous formulation of substantive subsidiarity has resulted in irreconcilable doctrinal errors in private law. Further, it will analyse recent cases regarding constitutional damages to show that clarity is required from the courts to ensure the future of a robust state liability doctrine in South Africa. A comparative analysis of state liability in England, France and Canada is undertaken to better understand the shortcomings within the South African legal system in this regard. Finally, building on the study of subsidiarity and comparative analysis, a new framework for hard cases within state liability is developed which clearly guides when vicarious liability in delict, direct state delictual liability, constitutional damages and any other damages are appropriate within the South African legal system.
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    Creative Commons infographic
    (2010) Donnelly, Shihaam
    This is a high resolution infographic detailing the basics of Creative Commons licenses - it explains the 4 main terms of these licenses. The Creative Commons infographic is ideal as a poster and is intended to supplement the teaching of Creative Commons licensing and copyright management.
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    Criminalising technology-facilitated child sexual exploitation and abuse: to what extent does Namibia comply with international law?
    (2026) Angula, Markus Penda Mulandula; Ally, Nurina; Lutchman, Salona
    With the growth and accessibility of fast-paced internet connections and mobile devices, children are increasingly living their lives online. In Namibia, 81 per cent of children aged twelve to seventeen are internet users. While technology has been a game changer for children, it has also facilitated Online Child Sexual Exploitation and Abuse (OCSEA) through digital platforms such as chat rooms, online gaming, online forums and social media. Despite Namibia's obligations under international conventions such as the Convention on the Rights of the Child (CRC), its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) and the African Charter on the Rights and Welfare of the Child (ACRWC), progress in fully domesticating and criminalising all forms of OCSEA remains slow. This research explores the extent to which Namibia's national laws on OCSEA comply with international obligations. It examines binding international conventions to establish the OCSEA conduct required for criminalisation under international law and tests national laws on OCSEA against international law requirements. This research shows that the Child Care and Protection Act of 2015 does not comprehensively address all forms of OCSEA despite it being the primary legislation domesticating the CRC, OPSC and ACRWC. Other national laws reviewed either lack the specificity of OCSEA or are not aligned with international law requirements. Key gaps in the legal framework include the failure to criminalise all forms of OCSEA, the absence of clear definitions of the different forms of OCSEA, and inadequate criminal penalties for violations that are proportionate to the gravity and magnitude of OCSEA. This research identifies the draft Cybercrime Bill and draft Sexual Exploitation Bill as opportunities to address these gaps. It recommends strengthening and consolidating the OCSEA-related provisions in both Bills into a single law with stronger and consistent legal provisions aligned with international law. It argues that the consolidated provisions should be placed in the Cybercrime Bill, which has better prospects of being enacted, as it is referenced in national plans. It recommends accelerating the enactment of the revised Cybercrime Bill.
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    Deductibility of actual expenditure and losses incurred, respectively, as a result of theft or defalcation and liability for damages or compensation
    (1996) Ngalwana,Vuyani R
    The area of income tax law in South Africa pertaining to the deductibility of expenses and losses incurred, respectively, as a result of theft or defalcation, on the one hand, and liability for damages or compensation, on the other, is replete with uncertainty particularly in light of the courts' inconsistency on this subject. Indeed, on review of case law in this area it appears, with respect, that in some cases the judicial personages, rather than have regard to the applicable principles, are prone to 'cut the sails to fit the trim' once a decision has been made to rule the one way or the other. The courts' inconsistencies and the resultant uncertainty on the part of taxpayers are, in my view, also exarcebated where more than one approach -- often leading to contrasting results -- to resolving the problem at hand are apposite. On such occasions it is difficult to fault the court's tendency to decide a case · consistently with its unarticulated policy considerations. Finally, another factor that, in my view, contributes to the uncertainty and inconsistency in this area of income tax law is the old judicial adagium that each case must be decided on its own facts. Although this is a sound legal principle it has, with respect, been used by the courts to find distinctions between cases where none exist in order to arrive at a particular preconceived result. These observations will become apparent in the discussion and analysis of case law in the body of this paper. Thus, the purpose of this paper is to revisit some of the reported judgments on this subject with a view to discussing and, in some cases, critically analyzing the manner in which the courts have applied (or failed to apply) the principles involved in determining the issue at hand. In the course of the paper, some reference (with a brief discussion on occasions) to Australian and English cases will be made with a view both to a comparative study with our law and tapping into the jurisprudence of these two nations in this difficult area of income tax law.
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    Die geheueverfrissingsprosedure
    (1988) van der Merwe, Stephan Erasmus; van Zyl Smit, Dirk
    The English common law of evidence assigns great importance to the principle of orality in the adjudication of disputes; insists, generally speaking, that a witness' oral statement in court (as opposed to his earlier written account) is the proper evidence; requires that a witness -should as a rule give independent oral testimony, i e, without the aid of a record (note, document, memorandum); acknowledges the inevitability of a witness being unable to recall the relevant event (or some details thereof); accepts the necessity of "memory refreshing'' as a means of promoting the accuracy of recall or obtaining evidence which might otherwise be lost; regards the procedure of refreshing the memory of a witness as perfectly compatible with the principle of orality which is such a marked characteristic of the accusatorial trial system; denies the usefulness - but not necessarily the validity - of Wigmore's fundamental distinction between ''present recollection revived" and "past recollection recorded"; and, further, maintains that oral evidence is received even where the witness has no independent recollection, i e, where he relies solely on his earlier recorded recollection. Legislation - locally and abroad - has amended some of the above principles or conceptions of the common law, most notably the principle that the earlier out of court written statement of the witness may as a rule not be received and, when received, may not be treated as an item of evidence. Part VI of the Civil Proceedings Evidence Act 25 of 1965 (as read with section 222 of the Criminal Procedure Act 51 of 1977) gives effect to the valid argument or consideration that the written statement of a witness may, depending upon circumstances, be more accurate than his later recollection in court. But Part VI contains strict conditions upon which such earlier record may be received as documentary evidence. Occasions may therefore still arise where the common law procedure of refreshing the memory of a witness should be followed. Documents used for the purpose of refreshing the memory of a witness, are not necessarily admissible as evidence in terms of Part VI. And even where a document is admissible in terms of Part VI, there might be good tactical reasons , why a party would prefer to attempt to refresh the memory of his witness, as opposed to merely resorting to reliance upon Part VI. One central issue examined in this thesis, is whether the distinctign between present recollection revived and past recollection recorded is valid and, further, whether this distinction is useful in dealing with problems concerning the common law procedure of refreshing the memory of a witness. ''Present recollection revived" (herinneringsherlewing) refers to the situation where the witness' memory is stimulated so that he can actively recall the forgotten events and testify independently from the written source which merely acted as a trigger. "Past recollection recorded'' (herinneringsherhaling) refers to the situation where the witness, even after consulting the written source, cannot testify from memory and can only vouch for the accuracy and reliability of the written source. An attempt is also made to determine whether the aforementioned distinction can be reconciled with the rules and principles of the common law trial and evidentiary system.
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    Discretionary trusts and section 7 (5) of the Income Tax Act
    (1996) Place, C
    Discretionary Trusts have fast become a very popular vehicle in all types of business transactions, due to their extremely flexible nature and the lack of formalities required in their day to day administration. However, largely for the above reasons, there are in my submission a great many questions arising from their existence, the answers to which are not always clear. Discretionary Trusts are furthermore, because of their inherent flexibility excellent vehicles for abuse, particularly in the form of tax avoidance. The purpose of this dissertation is to consider the Application of Section 7(5) of the Income Tax Act to a Discretionary Trust, and to attempt to answer what has been described as "the vexed question" of whether the exercise of a Trustee's discretion in a Discretionary Trust constitutes an "event" within the meaning ,of that Section. In addition I have given consideration as to whether "vesting' is a requirement of the operation of Section 7(5).
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    Do indigenous peoples have the right to self-determination? If so what does the right contain?
    (2003) Kaunda, Lisette; Bennett, Thomas William
    The problem of indigenous peoples goes back a long way in history. In a sense, formulating the matter in this way itself give rise to serious problems. Why for example, is it a problem of indigenous peoples? It may rightly be argued that, far from being a problem of indigenous peoples, it is in fact a problem of the conquering or invading people. Nevertheless however it is formulated, it is an old problem. In the 15th century, during an era of intense exploitation, European explorers undertook many voyages to distant unknown lands; The Portuguese were the first European to make contact with West Africa in 1440. By 1498, Portuguese voyagers had traveled virtually right round Africa. In the 16th century, in their quest to find a more direct route to India, Spain and Portugal conquered what we today call south and North America and the West Indies.
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    Does the FICA [Financial Intelligence Centre Act] legislation compromise the unique relationship between attorney-client and is there a conflict?
    (2004) Dajee, Vimal Victor; Davis, Justice D M
    Despite being relatively quite far down the long road to democracy, South Africa did not have any money-law laundering legislation. International pressure from organisations such as the Financial Action Task Force [FATF], the Organisation for Co-operation of Development [OECD] and Asia Pacific Group on Money-Laundering [APG], World Bank, and Interpol has resulted in a new jurisprudence. Since its introduction in 2002, the Financial Intelligence Centre Act, Act 38/2001 (hereinafter referred to as FICA, or 'The Act') has also brought about many perplexing conundrums - one of which being whether amongst other time-consuming and cumbersome obligations imposed by 'The Act' - whether, in fact, the whole relationship between a legal advisor will be severely compromised. In this paper, I shall propose to discuss whether the introduction of FICA legislation creates conflict in the relationship between an attorney and his/ her client. The use of the word 'relationship' postulates and pre-supposes commitment of the attorney to his/her client. To whom does the attorney now owe 'allegiance'? Has the promulgation of the FICA legislation invaded the sanctity and solemnity of the unique relationship between attorney and client? I shall now endeavour to set out what the attorney-client professional privilege is, as well as what the rationale is for the existence of the privilege, and also examine possible consequences that have resulted from the introduction of the FICA legislation as well as constitutional implications.
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    Does the watchdog bite: a comparative study of the judiciary as an accountability mechanism on high executive power in Malawi, Namibia and Seychelles
    (2026) Barnes, Joelle Sarah; Corder, Hugh; De Vos, Pierre
    This thesis examines the evolution of constitutional review powers in Malawi, Namibia, and Seychelles following the adoption of rights-based democratic constitutions in the 1990s. It investigates whether the courts in these jurisdictions have developed a coherent set of norms and principles to hold the President and Cabinet accountable for their use of high executive power. Despite their similar constitutional frameworks, significant differences emerge in how these courts have navigated their expanded roles. The study highlights that while the courts have established standards for reviewing executive conduct, there is variability in the predictability and clarity of their jurisprudence. A comparative analysis, including a case study on judicial responses during the COVID-19 pandemic, reveals that Malawi exhibits a robust but unpredictable jurisprudence, Namibia demonstrates emerging standards with largely predictable outcomes, and Seychelles faces systemic challenges that hinder effective judicial review. The findings underscore the necessity of contextual factors—such as judicial independence and public faith in the legal system—in embedding these powers effectively. This research contributes to the understanding of how legal frameworks can promote accountability and supports ongoing academic inquiry into the evolving relationship between the judiciary and executive power in modern African democracies.
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    Environmental Impact Assessment (EIA) and South African courts' interpretation of the legislative framework
    (2004) van Eeden, Kathinka; Glazewski, Jan
    The debate on the issue of the submission of environmental impact assessments (EIAs) goes back to the 1970s. The value of EIAs was first recognised by the South African government in 1976 with a report by the-then South African Council for the Environment entitled Identification and Evaluation of the Effects of Development Projects on the Environment and in 1980 with the publication of the White Paper on a National Policy regarding Environment Conservation. The White Paper formed the basis for the Environment Conservation Act (ECA) 73 of 1989, which included some provisions for EIAs.