Over the course of the last three decades the trust as an institution has become subject to abuse by trustees and founders alike. The courts have shown their aversion to such abuses by recommending various safeguards to protect the trust from being abused. In Land and Agricultural Bank of South Africa v Parker, Cameron JA suggested that the solution to preventing trusts from being abused is the introduction of an independent trustee . This contribution looks into the history of abuse of trusts in South Africa, the aspects and rationale of the Parker decision and the introduction of the independent trustee . The fiduciary nature of the trustee s office and the fiduciary duties a trustee holds is analyzed and is used to investigate possible alternative solutions to prevent the abuse of trusts. / Die trust as n instelling is oor die laaste drie dekades gereeld misbruik deur trustees sowel as stigters van trusts. Die howe het hul misnoë hierteen uitgespreek deur verskeie veiligheidsmaatreëls teen hierdie misbruik voor te stel. In Land and Agricultural Bank of South Africa v Parker het Cameron JA voorgestel dat die oplossing teen trustmisbruik die aanstelling van n onafhanklike trustee is. Hierdie tesis ondersoek die geskiedenis van die misbruik van trusts in Suid Afrika, die aspekte en rasionaal van die Parker beslissing en die bekendstelling van die onafhanklike trustee . Die fidusiêre aard van die amp as trustee sowel as die verpligtinge wat n trustee het word ondersoek en voorgestel as alternatiewe oplossings om die misbruik van trusts te voorkom. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Private Law / LLM / Unrestricted

In this dissertation I investigated and argued that Socio-economic rights can be justiciable as against the popular view being conceived and proposed against this notion. I argued that this noble project of adjudication and enforceability of socio-economic rights can be readily achieved if the judiciary understands its role in the adjudicative process involving such rights. I further recommended that the judiciary should be more active, pragmatic and innovative when called upon to adjudicate the provisions of socio-economic rights. In the course of my investigation, I related the famous example of how the judiciary in South Africa and India took the bull by the horns and became an enviable example to emulate in the adjudication and enforceability of socio-economic rights. It was the perpetual disfranchisement and the act of relegating socio-economic rights to a non-justiciable right; hence classifying it as secondary, that triggered my interest to embark on this work. As a result of the aforesaid, it became apparent that there is a need to reclaim the status quo of socio-economic rights to enable a meaningful enjoyment and exercise of political and civil rights. Interpretation, adjudication and enforceability of socio-economic rights are some of the most controversial issues amongst the judges, practitioners, scholars and government institutions hence a well carved theoretical solution would be invaluable. In chapter 1, I explored the underlying reason why socio-economic rights ought to be justiciable. In the process, I brought to light the current status quo of these rights amongst nations and the manner in which issues relating to their adjudication have become a non-issue for most of the states. This chapter also justified the reasons why South African and Indian jurisprudence were chosen as case studies in the subsequent chapter. I argued in this chapter that the South African Constitution emerged as one of the first constitutions in the world that, despite criticism, included socio-economic rights in its constitution alongside socio-economic rights as justiciable rights. On the other hand, I highlighted that the Indian judges were very innovative and approached the interpretation of these rights in a manner worth glorifying. As part of the conclusion, I highlighted the literature gaps in the course of my literature review and indicated what the subsequent chapter would entail. Chapter 2 examined the protection of socio-economic rights under the South African Constitution with a comparative analysis under the aegis of human rights law. It examines the status of socio-economic rights under the South African Constitution of 1996 and the historic debates and basis for their inclusion alongside civil and political rights in the Constitution.1 Furthermore, it examined the relevance of this bold step taken by the South African new constitutional order in comparison with other nations who had achieved similar goals by adopting different techniques and methods that aided the process. The last aspect of this topic investigated the different levels of protection enjoyed by socio-economic rights in the context of the American legal regime and other Western world countries while a comparison was also made within the African context. Chapter 3 focused on and investigated the core challenges associated with the justiciability and enforcement of socio-economic rights with a critical analysis on why the judiciary defers. This section focuses mainly on five major problems associated with adjudication and enforceability of socio-economic rights. In summary, these challenges may be categorized as follows: (a) institutional incapacity/capacity; (b) institutional integrity; (c) institutional legitimacy; (d) institutional security; (e) institutional comity and separation of powers influence. The above identified problems were examined in an attempt to ventilate the major problems and/or setbacks faced by the judiciary when called upon to make findings on issues pertaining to socio-economic rights. In so doing, the case of Lindiwe Mazibuko and Others CCT 39/09[2009] ZACC was employed to showcase how these challenges affected the adjudication of socio-economic rights and brief recommendations were made at the end. In chapter 4, I focused on lessons that could be learnt from the adjudication and enforceability of Socio-Economic Rights in South African and Indian Jurisprudence; this was done in view of a comparative exercise. In so doing, I analysed the landmark Constitutional decision of Government of the Republic of South Africa and Others vs. Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), a case which became the forerunner of all cases dealing with adjudication of socio-economic rights as far as the history of South African jurisprudence relating to social ordering is concerned. A comparison was then made to the Indian jurisprudence and a landmark case of Olga Tellis V. Bombay Municipality Corporation Supreme Court of India was examined in view of learning a lesson from the approach adopted by the judges in adjudicating the provisions of socio-economic rights. In view of the above, India provides one of the best examples in the world alongside South Africa in terms of Justiciability of economic, social and cultural rights. For example, the right to life was interpreted extensively by the Supreme Court of India to include the right to food. The broad analysis of the above was the primary focus of chapter 4. Lastly, chapter 5 wrapped up the dissertation with proposed recommendations and conclusions drawn from the previous chapters. The recommendations were drawn from the lessons learnt from the manner in which the South African and Indian judiciary took a different but related stance towards adjudication and enforceability of socio-economic rights. It was as a result of the these approaches that I recommended for a judicial activism and innovative interpretation of the core contents and application of the provisions of socio-economics rights as opposed to the stance usually adopted by the courts, being judicial deference would go a long way to ensure that the project of justiciability of social rights becomes achievable. Accordingly, I proposed for the theoretical understating of transformative democratic institutions, participatory democracy and representative democracy. In particular, judicial activism and innovative interpretations of socio-economic rights provisions would be the necessary tools needed to aid the enforcement and interpretation of the core contents of socio-economic rights by the judiciary. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

Money laundering is defined as the manipulation of illegally acquired wealth in order to obscure its true source or nature. This is achieved by performing a series of transactions that, if successful, will leave the illegally obtained proceeds appearing as a product of legitimate transactions or investments. The expansion of the internet has made it possible to transfer money almost immediately through cyberspace. The internet is ideal for money launderers because of the speed of transacting, easy access, anonymity of the parties and the capacity to transverse countries within milliseconds. On national and international level commercial crime poses significant threat to the stability of financial systems and democratic institutions. Various bodies have joined forces to fight against the crime of money laundering. These bodies include the United Nations, the Financial Action Task Force and the Basel Committee on Banking Supervision. The Financial Intelligence Centre Act 38 of 2001 stipulates certain obligations that banks have to comply with to combat money laundering. In April 2014 South Africa s Reserve Bank (SARB) fined the country s big four banks a total of R125 million for failing to have appropriate measures in place to ensure compliance with the provisions of FICA. More recently in February 2015 SARB collectively fined Deutsche Bank and Capitec Bank a total of R15 million for breaching FICA. This dissertation aims to discuss the duties imposed by FICA on South African banks to combat money laundering and to identify the possible problems that may be hindering banks from effectively complying with their duties. Recommendations will be made on how FICA can be amended to prevent non-compliance with these provisions in the future. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

The international community gathered in 2005 and adopted the doctrine of responsibility to protect? in paragraphs 138 and 139 of the World Summit Outcome Document.1 A few years after this Resolution, the UN Security Council with the support of the international community, applied the concept of responsibility to protect in the 2011 Libyan intervention. The Resolution 1973 was adopted as a result of Gaddafi?s manifest intention to exterminate the Libyan population. The Resolution authorised the member nations and regional organizations to use all measures necessary to protect all civilians in Libya.2 Thereafter, the coalition of states went to Libya, under the pretext of responsibility to protect and protection of civilians, and as a result the Libyan leader was killed. The killing of Gaddafi generated wide controversy as a result of the manner in which the intervening forces implemented Resolution 1973. It is against this background that this research work investigates the applicability of responsibility to protect and the legality of the NATO intervention in Libya. In so doing, the research study examines the historical development and content of responsibility to protect, which was introduced in 2001 and adopted by the world leaders in 2005. The study aims to investigate whether or not the intervention in Libya was in line with responsibility to protect, and, in so doing, the study analyses Resolution 1973 to ascertain whether or not the interveners went beyond their mandate. The responsibility to protect is central to the discussion of the research work because Resolution 1973 in its preamble reminded the Libyan government of their responsibility to protect civilian population. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

This study is based on the moral philosophy and theory of African humanness termed ubuntu. A qualitative methodology has been adopted to interpret ubuntu in the light of, and in contrast to the Eurocentrisim of human rights law, particularly as contained in the African Charter on Human and Peoples Rights. The study identifies the inconsistencies in the African Charter and the weaknesses in the jurisprudence of the African Commission on Human and Peoples Rights. The researcher argues that inconsistencies and weaknesses arise due to the absence of an interpretive framework in the African Charter. Ubuntu is proposed as an interpretive framework at the hand of which the provisions of the Charter can be read and interpreted. Research shows that ubuntu aligns itself with the historical experiences and human rights values of the African continent. It is in line with the aspirations and intents of the drafters of the African Charter and more importantly, ubuntu has proved to be capable of promoting and protecting the rights and interests of a society without jeopardizing the rights and interests of the individual. It also has the potential of an harmonious balance between an individual s duties and his rights or needs. In conclusion, the researcher contends that with the adoption of ubuntu as an interpretive framework of the African Charter, those humanist aspirations of the African Charter which have so far been igored, can be achieved. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Jurisprudence / LLM / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

Given the current problem of unequal access to water which affects millions of people around the world, the purpose of this study is to attempt to determine how the bottled water industry fits in the project of universal and equitable access represented by the recognition of of water as a human right. The emerging notion of the human right to water upholds that the provision of safe drinking water at least the minimum amounts necessary to satisfy basic human needs should be provided to all persons, regardless of their socio-economic status. On the other hand, the bottled water industry treats water as an ordinary commodity, subjecting this water to market forces, limiting consumption so that only those who can afford it can have access to it, and thus reinforcing a notion of restricted access to water. In light of the above, it is striking that, while some people die of thirst, the market of bottled water has simultaneously grown exponentially in the last couple of years. Hence, a question arises as to what extent this two water ideologies can be said to be compatible. It is concluded that, in certain circumstances, the bottled water industry, far from fostering the realisation of the human right to water, may negatively impact on its realisation. This is mainly because the industry is part of a larger trend of water commodification that reinforces a project of restricted access to water, promoting institutional structures where only those with economic means can have access to the most important and essential element for human survival. / Mini Dissertation (LLM)--University of Pretoria, 2016. / Centre for Human Rights / LLM / Unrestricted

Mini Dissertation (LLM)--University of Pretoria, 2015. / Public Law / LLM / Unrestricted

The research in this dissertation investigates the impact of pacta sunt servanda in the South African law of contract. The notion that agreements seriously entered into must be honoured is an age-old principle which has found recognition in South African law. The common law foundational principles of contract law are explained and the impact of the Constitution on these principles is analysed. The Constitution is the highest law in the land and all law, including the common law, must conform to it. The cornerstones of the South African law of contract are good faith, freedom of contract, sanctity of contract and privity of contract. The competing common law foundational values are discussed with particular emphasis on the principles of sanctity of contract and freedom of contract. The notion of freedom of contract is a constitutionally recognised principle which is associated with party autonomy and denotes minimal state interference. Pacta sunt servanda states that obligations created in terms of an agreement must be honoured; therefore parties who enter into contractual agreements with the relevant intention are obliged to respect the agreement. There are many dimensions to a contract which affect its meaning as a legal instrument, apart from the legal dimension there is also a structural dimension of contracts. With regards to the structural dimension, the interpretation and the drafting of contracts is relevant because this is the process by which the agreement between the parties is codified and interpreted. In order for the principle of pacta sunt servanda to operate successfully in contractual agreements, the written contract must clearly indicate the intention of the parties. In this research both interpretation and drafting of contracts will be examined to identify their impact on the principle of pacta sunt servanda. Pacta sunt servanda influences the interpretation and drafting of contracts and must therefore always be considered when executing contractual agreements. The case law in this research highlights the fact that courts are in favour of contractual validity and have accepted pacta sunt servanda as a cemented principle in the South African law of contract. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted

This dissertation interprets the meaning and application of the concept unconscionable conduct as well as the factors that constitute unconscionability, contained in section 40(1) of the Consumer Protection Act 68 of 2008 (CPA), by comparing consumer laws and definitions from different countries with South Africa. This dissertation illustrates that the generic term unconscionable conduct is not well known in South Africa, despite the provision thereof in the CPA. There is consequently uncertainty regarding this concept and it is therefore necessary to include a more in depth definition and explanation. The dissertation furthermore attempts to establish concrete definitions for the unconscionability factors such as, physical force against a consumer, coercion, undue influence, pressure, duress or harassment and unfair tactics. These factors are not defined anywhere in the CPA and well-constructed definitions will reduce uncertainty and interpretation problems Two conclusions can be drawn from this dissertation: Firstly, that the concept of unconscionable conduct must be expanded, improved and explained. This will ensure that all suppliers know the consequences of unconscionability and that the consumer can have the peace of mind to know they will be protected under all circumstances. Secondly, that the CPA must be improved with regards to the factors of unconscionability. By removing unnecessary factors and providing concrete definitions to the remaining factors will ensure that the entire concept is easier to understand and apply. / Mini Dissertation (LLM)--University of Pretoria, 2015. / Mercantile Law / LLM / Unrestricted