Browsing by Subject "private law"

Now showing 1 - 9 of 9
  • Thumbnail Image
    Item
    Open Access
    Competing hegemonic powers in the negotiating history of the GATT: an analysis of how the United States and United Kingdom's competing visions of the proposed multilateral trading regime influenced the final codification of the GATT
    (2020) Rachwal, Natasha; Ismail, Faizel
    The General Agreement on Tariffs and Trade 1947 (hereafter referred to as the GATT) emerged in the aftermath of World War II and, despite the initial intention that it would serve as a mere interim arrangement while the administrative framework of the International Trade Organisation was finalised, the GATT would proceed to guide the course of multilateral trade throughout the twentieth century. What is often overlooked in mainstream analyses of the key principles underpinning the liberal international economic order is the significance of the negotiating history of the GATT which was dominated by two main participants, the United States and the United Kingdom. These parties experienced very different growth trajectories following World War II and so sought to advance different national interests within the negotiating forum. Briefly, while the United States was benefitting from an unprecedented increase in its economic and political power and wanted to see greater market access for its domestic industries, the United Kingdom was undergoing a difficult period of recovery and wanted to consolidate its system of imperial preferences. Nevertheless, because neither could unilaterally dominate the international policy space and because both recognised the value in promoting free trade for international political stability, they would ultimately reach a negotiated compromise resulting in the final codification of the GATT. In adopting a historical and textual methodology, this dissertation will argue that, in order to gain a more nuanced understanding of the principles underlying the GATT, one ought to examine the complexities of the negotiations leading up to its final codification, including the domestic interests advanced by the negotiating parties as well as contemporary hegemonic power dynamics.
  • Thumbnail Image
    Item
    Open Access
    Family reunification within the refugee context: Is South Africa meeting its International, regional, constitutional and legal obligations towards refugees?
    (2006) Khan, Fatima; de la Hunt, Vla
    The refugee experience is such that it is common for family members to be separated from each other before or during their flight from the country of origin. In the face of persecution, families adopt strategies, some of which may necessitate temporary separation: sending a politically active adult into hiding, helping a son escape forcible recruitment by militia forces, sending abroad a woman at risk of attack or abduction. Family members may be forced to take different routes out of the country or to leave at different times as opportunities permit. It is therefore also common for refugees to be unaware, often for long periods, whether a family member is alive or dead. The commonality of the experience does not in any way detract from the pain and anxiety felt by those separated from close family members.
  • Thumbnail Image
    Item
    Open Access
    Inheritance and redistribution: exploring the constitutional commitment towards redistribution in the private law of succession
    (2021) Cogger, Jonathan; de Vos, Pierre; Paleker, Mohamed
    The inevitability of the death of all property owners means that the redistribution of property at death is a basic function of the law of succession. In the systems that recognise testamentary freedom (including South Africa), the right to distribute property after death is considered as a natural extension of the entitlements that an owner enjoys while alive. Testamentary freedom is an age-old common law principle that has formed part of our law since time immemorial. This right vests in individual owners, and courts (and functionaries of the state) are obliged to give effect to the clear intentions of testators as expressed in their wills. Ownership therefore forms the basis of the right to make testamentary disposals that become enforceable after death. In this way, a primary role of testate succession law is to extend the rights of owners after death. The question this thesis seeks to answer is whether the common law right to dispose of property after death is a constitutionally protected property right in light of constitutional commitments to redistribution, restitution and historical redress. This involves an interpretation of the nature, purpose and scope of section 25 of the Constitution in the context of the common law of testate succession. In this thesis, I critique the academic and judicial view that ownership is central to the constitutional protection of the common law principle of freedom of testation. I argue that the current interpretation of the property clause represents a one-dimensional view of property rights that ignores accepted constitutional property jurisprudence of the interpretive approach to the property clause, including its dual purpose in protecting as well as transforming property relations and the emphasis on our historical context of past discrimination. In essence, my thesis is a critical evaluation of the nature and scope of testamentary freedom for the purposes of justifying the redistribution of wealth and property at death. My ultimate goal is to show that the redistribution of property through inheritance law is politically and constitutionally justified.
  • Thumbnail Image
    Item
    Open Access
    Local content requirements in the South African extractives sector: Do South Africa's local content requirements for the mineral and mining sector promote foreign direct investment?
    (2022) Wheeler, Keanan Shane; Mostert, Hanri; Cramer, Richard Henry
    The South African Government has an interest in ensuring that South Africa derives benefit from the exploitation of its natural resources. In the South African mineral and mining industry, this interest extends to the proceeds acquired from participation therein. Participation in the mineral and mining industry, however, is high risk, capital intensive and often has long lead times from exploration to production. Due to these factors, exploiting South Africa's mineral resources with recourse to purely domestic financing, expertise and/or equipment is challenging, if not impossible. Therefore, the industry requires capital, investment, and input from foreign sources, namely by way of Foreign Direct Investment (FDI). To ensure that foreign participation in its mineral and mining industry allows for domestic benefit, and that said benefit is enhanced in accordance with its policy objectives, the South African Government has formulated and imposed Local Content Requirements (LCRs) for the industry. This dissertation analyses the question of whether the LCRs formulated and imposed in the South African mineral and mining industry promote the attraction of FDI. The argument made is that the overarching factor influencing the decision to invest in the South African mineral and mining industry is certainty. Pursuant thereto, this dissertation argues that, as presently formulated and implemented, the LCRs applicable to the South African mineral and mining industry do not ensure certainty and, accordingly, do not promote the attraction of FDI. In the light of this conclusion, this dissertation offers two recommendations to the South African Government to enhance certainty in respect of the LCRs applicable to the South African mineral and mining industry for the purpose of promoting the attraction of FDI.
  • Thumbnail Image
    Item
    Open Access
    National council of provinces rhetoric in overseeing the implementation of South Africa's national development plan
    (2022) Mvulane, Sebolelo Constance; Salazar, Philippe-Joseph
    This thesis is about analysing the political rhetoric of the National Council of Provinces (NCOP), in overseeing the implementation of South Africa's National Development Plan (NDP).1 The study seeks to define the underlying reasons which, compound slow policy implementation, particularly as exacerbated by weakened and misaligned policy oversight debates in the NCOP. This study is particularly important because the NDP is the long-term vision and development plan of the governing African National Congress's vision 2030. Findings from the National Planning Commission's Diagnostic Report which, was released in June 2011, indicated that “a failure to implement policies and an absence of broad partnerships have been identified as some of the main reasons for the slow progress in implementing the country's transformation policies.” 2 In addition to these prevailing conditions, “it is also imperative to note that South Africa had found itself in the middle of a technical recession and had still been grappling with the impact and aftermath of the Global Financial Crisis, at the time when the NDP was adopted in 2012. 3 ” “The global financial crisis had a dire impact on the South African labour market, resulting in the shedding of almost 1 million jobs over 2009 and 2010, reflecting longer term structural problems.”4 The NDP was hence developed in part, to address the impact of the 2008 global financial crisis, alongside growing and prevailing social and economic challenges in South Africa. Inherited inequalities had been exacerbated, in part by the fact that Parliament and particularly the NCOP, had not been able to adequately give full effect to its three sphere oversight role as underpinned by its cooperative governance and intergovernmental relations constitutional mandate. Consequently, this has led to an inability to meaningfully oversee and accelerate the implementation of South Africa's transformation policies. The study will place strategic focus on how the quality of arguments communicated in the NDP could either catalyse or impede the oversight and accountability work of the NCOP, thereby inadvertently decelerating the implementation of the NDP. The study also provides an overarching perspective of South Africa's broader rhetorical situation, which manifest as exogenous shocks within the NCOP's operating environment. The overarching rhetorical situation is also postulated as one of the key determinants, impacting how the NCOP approaches and shapes its policy debates. Specific emphasis will also be placed on the National Council of Provinces (NCOP) in the fifth parliament (particularly the 2015 appropriations budget vote process) and how the second chamber of Parliament has for purposes of executing its constitutional mandate of three sphere oversight and accountability, interpreted, synthesized, and as a result executed its oversight functions, based on the rhetoric of the NDP in relation to the outcomes in the NDP that focus on the economy, employment, and the NDP's commitment to building a capable developmental state. This study is of great importance and is necessitated by the imperative to ensure that the NCOP matures in its role as construct of South Africa's constitutional democracy, which is tasked with the important responsibility of undertaking three-sphere oversight to oversee the implementation of key development policy constructs and development catalysing legislation, as guided by the NDP.
  • Thumbnail Image
    Item
    Open Access
    Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?
    (2021) Mazhude, Mandifadza Kurirai; Omar, Jameelah
    This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences.
  • Thumbnail Image
    Item
    Open Access
    The development of a Bachelor of Laws (LLB) curriculum change management model for South African universities
    (2023) Moolman, Hermanus Johannes; Greenbaum, Lesley Anne
    The National Review of the LLB by the Higher Education Qualifications Committee of the Council on Higher Education from 2015 to 2018 underscored the dire need for LLB curriculum change at South African universities. Not only did the Review call for ‘wideranging curriculum reform', but it also recommended that the minimum duration of the four-year LLB be extended by an additional year. Most institutions responded with minor changes to their LLB curricula to meet the demands of the National Review of the LLB and to remain accredited. However, a comprehensive review of their LLB curricula may be required to improve the quality of their graduates in the long run. Furthermore, should it be decided to extend the LLB by one year, all universities offering a four-year LLB will have to engage in comprehensive curriculum change by developing new five-year LLB curricula. Although curriculum change management models (hereafter CCMMs) play an important role in revising or reflecting on HE curriculum change, no model was available for law curriculum change. The study focuses on developing a change management model for facilitating comprehensive curriculum change of the LLB at universities in South Africa. A mixed methods research design was adopted to achieve the purpose of the study. Based on a literature review, a Draft LLB CCMM comprising 61 prescriptive outlines (hereafter POs) was proposed in Phase 1. The Draft LLB CCMM was used to compile a structured questionnaire in Phase 2 of the study. Staff members (n=28) who had participated in a comprehensive LLB curriculum change process at the University of the Free State (hereafter UFS) quantitatively rated the importance of the POs for facilitating LLB curriculum change in South African circumstances. They also rated the compliance of the UFS curriculum change process with these POs. The quantitative evaluation of the POs of the Draft LLB CCMM in terms of importance suggested that all POs should be included in the Final LLB CCMM. A critical reflection on the initiatives and practices implemented during the UFS curriculum change process led to identifying recommended practices for those POs that met the minimum quantitative compliance criteria. Reflective appraisal, the quantitative feedback from questionnaire participants and consulting appropriate literature assisted in identifying what could have been done differently for those POs that did not meet the minimum compliance criteria. Also, a focus group discussion in Phase 3 shed light on why some POs did not meet the minimum compliance criteria. In the focus group, the discussions on the strengths and weaknesses of the UFS curriculum change process led to the identification of additional POs and recommended practices in the Final LLB CCMM. The quantitative and qualitative findings in Phases Two and Three were integrated to propose the Final LLB CCMM. The study contributes towards curriculum change theory building. The Final LLB CCMM breaks down the challenging, multifaceted and complex nature of comprehensive curriculum change into manageable processes, functions, POs and recommended practices. Although the CCMM was specifically developed for comprehensive LLB curriculum change, specific processes, functions, or POs of the model can be adapted to permit faculties to engage in minor or piecemeal LLB curriculum changes. Also, the CCMM can be adapted to facilitate curriculum change in other disciplines.
  • Thumbnail Image
    Item
    Open Access
    The failure of the European Union to offer adequate protection to refugee women
    (2019) Gwaka, Chiedza; Khan, Fatima
    The majority of refugee and migrant women who are travelling to Europe to seek asylum in the European Union are coming from war-torn countries in order to seek asylum from war or gender-based violence. This is due to the fact that women and children are often targets during war. They may be victims of forced marriages, forced abortions, genital mutilation, genderbased violence, sexual gender-based, rape and murder. Furthermore, these crimes are taking place on refugee routes leading into the European Union and in informal camps within the Union. These informal camps grow rapidly and the refugee populations always outgrow the availability of resources. As a result men and women cannot be housed separately thereby putting women at risk of gender-based violence, sexual harassment and rape. The dilemma therefore faced by refugee women is two-fold; the 1951 Refugee Convention does not mention gender as grounds upon which women can seek asylum meaning women who have suffered persecution and violence on the basis of their womanhood cannot qualify for refugee status and international protection. Secondly, the unsafe conditions of camps and some reception centres in Europe which exposes women to further forms of violence serves to compound their suffering and trauma and also amounts to further violations of their rights. Although EU Member States are aware of these matters, not much practical action has been taken to ensure safety and protection for refugee women.
  • Thumbnail Image
    Item
    Open Access
    The impact of government decentralisation on the development and implementation of benefit-sharing laws in Kenya's extractive sector
    (2022) Singoei, Abraham Korir; Mostert, Hanri
    Intra-state distribution of monetary and non-monetary benefits from resource extraction among multiple entities is a subject of considerable interest in natural resource law. Drawing mainly but not exclusively from international human rights and environmental law, this study explores the nature, core content and models of benefit sharing in the extractive sector in Kenya. The study establishes that central to the push for benefit sharing is the desire to realise justice – commutative, distributive or compensatory – for resource-host communities and regions. Kenya is an ideal case study related to benefit sharing because of its recent adoption of multi-level governance known as devolution. From this lense of multi-level governance, the thesis assesses whether such a system aids or impedes the effective distribution of resource benefits to host regions and communities, a factor critical to mitigating resource conflict. The thesis examines Kenya's legal regime governing benefit sharing from the colonial period to the present. This historical review demonstrates the significant impact that Kenya's Constitution adopted in 2010 has produced in entrenching benefit sharing in the norms and institutions of the state. It attributes the enhanced legal and policy recognition of benefit sharing not merely to the text of the Constitution but to the role played by semi-autonomous territorial units, known as counties, in shaping emerging norms and standards on benefit-sharing through a wide range of strategies including legislation, litigation and information dissemination. Where countiestake a proactive role in shaping the manner in which resource costs and benefits are distributed in law, responsive legislative outcomes can be realised. Conversely, where counties fail to seize their institutional position to aid resource impacted communities' engagement with policy opportunity structures, national institutions and resource operators are likely to default to historically exclusionary and paternalistic approaches to benefit sharing. The legal and institutional gaps evident in Kenya's mineral and petroleum legislative regime are largely a function of this dynamic. In examining the response of two resource-host counties in Kenya-Turkana and Kwalethe study demonstrates the need for counties to make pro-community policy choices in ensuring that constitutionally mandated monetary and non-monetary benefits are accessed at the local level. The study validates the utility of benefit sharing as an enabler of stable resource development environment especially when its impact is experienced through local economic development within host regions and communities.