An increase in international trade has resulted in an increase in the carriage of goods by sea, which has also promoted the business of marine insurance on a very huge scale. Marine insurance contracts fall within both the admiralty jurisdiction where admiralty laws apply and special contract law where the rules and principles of contract law apply. In certain circumstance this has left the courts with a dilemma in deciding in particular cases which law should apply; whether maritime law, contract law or marine insurance law. There are certain principles under the law of contract that are said to be profound and cannot be ousted easily by substantive law. The principle of party autonomy is one of these principles and it has gained international recognition through a number of cases. However, to date, courts are faced with difficulties in deciding whether to uphold the choice of law on jurisdiction and governing law exercised by parties or resort to substantive law, either by virtue of admiralty law or any other statutes in a country, which provisions may be contrary to the clause on choice of law under the contract. In South Africa practice has shown that courts are always reluctant to apply the clause on choice of law if they believe such application is against the public policy and interest in South Africa. This begs the question as to the precise meaning and effect of “public policy and interest” and how this principle influences the long-standing and well-established principle of party autonomy in admiralty jurisdiction. This dissertation is aimed at providing a legal response to this problem by analysing case law and the different viewpoints of various writers. It is imperative to investigate if their decisions and views answer all the uncertainties with regard to the meaning and the effect of the concept of “public policy and interest” on the principle of party autonomy. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014

An increase in international trade has resulted in an increase in the carriage of goods by sea, which has also promoted the business of marine insurance on a very huge scale. Marine insurance contracts fall within both the admiralty jurisdiction where admiralty laws apply and special contract law where the rules and principles of contract law apply. In certain circumstance this has left the courts with a dilemma in deciding in particular cases which law should apply; whether maritime law, contract law or marine insurance law. There are certain principles under the law of contract that are said to be profound and cannot be ousted easily by substantive law. The principle of party autonomy is one of these principles and it has gained international recognition through a number of cases. However, to date, courts are faced with difficulties in deciding whether to uphold the choice of law on jurisdiction and governing law exercised by parties or resort to substantive law, either by virtue of admiralty law or any other statutes in a country, which provisions may be contrary to the clause on choice of law under the contract. In South Africa practice has shown that courts are always reluctant to apply the clause on choice of law if they believe such application is against the public policy and interest in South Africa. This begs the question as to the precise meaning and effect of “public policy and interest” and how this principle influences the long-standing and well-established principle of party autonomy in admiralty jurisdiction. This dissertation is aimed at providing a legal response to this problem by analysing case law and the different viewpoints of various writers. It is imperative to investigate if their decisions and views answer all the uncertainties with regard to the meaning and the effect of the concept of “public policy and interest” on the principle of party autonomy. / LLM (Import and Export Law), North-West University, Potchefstroom Campus, 2014

The Labour Relations Act 66 of 1995 provides an elaborate dispute resolution system which seeks to resolve disputes in a speedy and cost-effective manner. However, this system is faced with a number of challenges. The application of common law and administrative law causes tension between the Labour Court and civil courts. It creates uncertainty in the development of our labour law jurisprudence and also leads to the problem of forum shopping. These problems in effect undermine the objectives of the Act. This dissertation analyzes problems in the LRA and other legislations leading to forum shopping. It also analyses the view of the courts on this problem and further expounds a number of possible solutions. The analysis revolves mainly around an observation of South African literature and case law. / Mercantile Law / LL.M.

The Southern African Development Community Tribunal (the Tribunal) is the only judicial organ of the Southern African Development Community (the SADC). Its mandate includes ensuring “adherence to and the proper interpretation of the provisions of the Southern African Development Community Treaty” (the Treaty). The decisions of the Tribunal are final and binding in the territories of member states party to a dispute before it. The responsibility to ensure that the decisions of the Tribunal are enforced lies with the Southern African Development Community Summit (the Summit). The Summit is the supreme policy-making body of the SADC. It comprises the Heads of State or Government of all SADC member states. The decisions of the Summit are binding on all member states and, upon referral from the Tribunal, it has the power to take appropriate action against a member state who refuses to honour a decision of the Tribunal. The Tribunal was established primarily to deal with disputes emanating from the SADC’s economic and political units and not with human rights. A dispute concerning allegations of human rights violations in Zimbabwe was brought before the Tribunal by farmers affected by the country’s land-reform policy. The Tribunal, through reliance on the doctrine of implied powers, and the principles and objectives of the SADC as contained in the Treaty, extended its jurisdiction. In particular, the Tribunal found that it had jurisdiction to hear cases involving human rights violations and that there had indeed been human rights violations in the case before it. It consequently ruled against Zimbabwe. This decision has been welcomed by many within the SADC region as showing the Tribunal’s commitment to interpreting the Treaty in a way that does not run counter the rights of SADC citizens. However, the Tribunal’s decision has met with resistance from Zimbabwe and has not been implemented on the ground, inter alia, that the Tribunal acted beyond its mandate. The Tribunal has on several occasions referred cases of non-compliance to the Summit for appropriate action against Zimbabwe. The Summit, however, has done nothing concrete to ensure that the Tribunal’s decisions are enforced in Zimbabwe. Instead, in an unexpected move that sent shockwaves through the SADC region and beyond, the Summit suspended the Tribunal and resolved that it should neither receive nor adjudicate any cases. During the SADC summit in August 2014, a Protocol on the Tribunal in the Southern African Development Community was adopted and signed (the 2014 Protocol). In terms of this Protocol the iii jurisdiction of the (new) Tribunal will be limited to inter-state disputes. Unfortunately, it also does not provide any transitional measures to address issues such as the manner to deal with pending cases and the enforcement of judgments. When it comes to the execution and enforcement of judgments, it can be argued that the 2014 Protocol is largely a replica of the original 2000 Tribunal Protocol. The reason for this is that the envisaged mechanisms to enforce the decisions of the new Tribunal is to a large extent similar to the previous one. Unsatisfied over the non-compliance with the decision by Zimbabwe, the litigants approached the South African courts to enforce the Tribunal’s decision in South Africa.1 The South African courts found that South Africa is obliged under the SADC Treaty to take all the necessary measures to ensure that the decisions of the Tribunal are enforced, and ruled against Zimbabwe. However, the decision is yet to be enforced. The non-compliance with the judgments and a lack of mechanisms to enforce the decisions of the Tribunal, are crucial issues as they undermine the authority of the Tribunal. This thesis explores whether the Tribunal acted within its mandate in receiving and hearing a human rights case. It further considers whether, in the absence of a human rights mandate, the Tribunal enjoys implied powers under international law to invoke the powers necessary for the fulfilment of the objectives set out in the Treaty. It also reviews the concept of state sovereignty and the extent to which it has been affected by human rights norms post-World War II; regionalism; and globalisation. An important aspect examined, is the relationship between SADC Community law and the national law of member states. The relationship between national courts and the Tribunal also receives attention. Ultimately, the discourse addresses compliance and enforcement of the Tribunal’s decisions in the context of international law. To the extent relevant, I draw on other regional (the European Court of Justice) and sub-regional (the ECOWAS Community Court of Justice, and the East African Court of Justice) courts to establish how they have dealt with human rights jurisdiction and the enforcement of their judgments. / Jurisprudence / LL. D.

The Labour Relations Act 66 of 1995 provides an elaborate dispute resolution system which seeks to resolve disputes in a speedy and cost-effective manner. However, this system is faced with a number of challenges. The application of common law and administrative law causes tension between the Labour Court and civil courts. It creates uncertainty in the development of our labour law jurisprudence and also leads to the problem of forum shopping. These problems in effect undermine the objectives of the Act. This dissertation analyzes problems in the LRA and other legislations leading to forum shopping. It also analyses the view of the courts on this problem and further expounds a number of possible solutions. The analysis revolves mainly around an observation of South African literature and case law. / Mercantile Law / LL.M.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.

The Southern African Development Community (SADC) is a regional economic community established by Treaty in 1992 and comprising fifteen southern African countries. The Tribunal, SADC’s judicial organ, is situated in Windhoek, Namibia and became operational in 2005. The Tribunal enjoys a wide mandate to hear and determine disputes between states, states and SADC, and between natural and legal persons and states or SADC. It is mandated to develop its own jurisprudence having regard to applicable treaties, general rules and principles of public international law, and principles and rules of law of member states. Being new in the field, the Tribunal has not as yet developed a significant jurisprudence although it has delivered a number of judgments some of which are referred to in the study. The Tribunal is expected to develop its own jurisprudence having regard to the jurisprudence developed by other international courts involved in the judicial settlement of disputes. The study offers a comparative review and analysis of the jurisprudence of two selected courts: the International Court of Justice (ICJ) and the Court of Justice of the European Union (ECJ). The focus is on four selected areas considered crucial to the functioning of the Tribunal and the selected courts. The study discusses the parties with access to the Tribunal and compares this with access to the ICJ and ECJ. The jurisdiction of the Tribunal is contrasted with that of the two selected courts. The sources of law available to the Tribunal are discussed and contrasted to those of the two courts. Lastly, the enforcement of law in SADC is contrasted to what applies in relation to the selected courts. In each selected area, similarities and differences between the Tribunal and the two courts are noted and critically evaluated. Further, rules and principles developed by the two selected courts are explored in depth with a view to identifying those which could be of use to the Tribunal. Recommendations are made on rules and principles which could be of use to the Tribunal and on possible improvements to the SADC treaty regime. / Constitutional, International and Indigenous Law / LL.D.

This dissertation presents an analytical literature study regarding the relationship between the International Criminal Court and the proposed International Criminal Law Section of the African Court. The realisation of the International Criminal Law Section of the African Court will place itself and the International Criminal Court within the same jurisdictional sphere with regard to the adjudication of international customary law crimes with respect to its African member states. It is noteworthy to point out that this complexity is fraught with political turmoil regarding Africa, the International Criminal Court and the United Nations Security Council. This complex issue has been acutely recognised by numerous academics and law experts. Neither the Rome Statute nor the Protocol makes any reference towards each other, leaving its respective African member states with the daunting and ambiguous task of navigating through this complexity in isolation. This dissertation aims to investigate, analyse and ultimately offer a plausible solution to this immediate concern. In order to accomplish the aforementioned, this study will firstly investigate and evaluate both constitutional treaties of both international courts, respectively. The issue pertaining to the endowment of immunity will also be separately evaluated, considering the conflicting approaches followed by both judicial institutions. Ultimately, all previous sections will be analysed in order to recommend amendments to the Protocol to align itself with international law and settled international practice. A complementarity scheme will be introduced on the basis of the progressive interpretation of positive complementarity to harmonise both courts within the same jurisdictional sphere. Lastly, this dissertation will be concluded by remarks recapitalising the main findings. / LLM, North-West University, Potchefstroom Campus, 2015

This dissertation presents an analytical literature study regarding the relationship between the International Criminal Court and the proposed International Criminal Law Section of the African Court. The realisation of the International Criminal Law Section of the African Court will place itself and the International Criminal Court within the same jurisdictional sphere with regard to the adjudication of international customary law crimes with respect to its African member states. It is noteworthy to point out that this complexity is fraught with political turmoil regarding Africa, the International Criminal Court and the United Nations Security Council. This complex issue has been acutely recognised by numerous academics and law experts. Neither the Rome Statute nor the Protocol makes any reference towards each other, leaving its respective African member states with the daunting and ambiguous task of navigating through this complexity in isolation. This dissertation aims to investigate, analyse and ultimately offer a plausible solution to this immediate concern. In order to accomplish the aforementioned, this study will firstly investigate and evaluate both constitutional treaties of both international courts, respectively. The issue pertaining to the endowment of immunity will also be separately evaluated, considering the conflicting approaches followed by both judicial institutions. Ultimately, all previous sections will be analysed in order to recommend amendments to the Protocol to align itself with international law and settled international practice. A complementarity scheme will be introduced on the basis of the progressive interpretation of positive complementarity to harmonise both courts within the same jurisdictional sphere. Lastly, this dissertation will be concluded by remarks recapitalising the main findings. / LLM, North-West University, Potchefstroom Campus, 2015

Thesis (MA)--University of Stellenbosch, 2002. / ENGLISH ABSTRACT: The International Criminal Court (ICC) is an exciting new development in the international system. It is not without its detractors, however, amongst others the United States. The fact that the United States takes a strong stance against the ICC creates uncertainty in the international system. This uncertainty is linked to the role of the United States as the only remaining superpower in this system. The main concern of the United States about the ICC is that an American might be brought before the court in terms of politically motivated charges. To illustrate this concern, the United States offers five basic arguments. These five are condensed into three arguments that form the main body of this thesis. They are the questions related to the jurisdiction of the ICC, the role of the United Nations Security Council in the functioning of the ICC, and the influence that the United States constitution might have on the ICC. Close attention is also paid to the political implications of the stance taken by the United States, both in terms of the specific arguments, and in general. The different arguments are tested against certain criteria, which include the stipulations of the ICC Statute and other counter arguments. From these comparisons, certain evaluations can be made, from which conclusions are drawn. For various reasons, none of the arguments put forward have merit when tested against the stipulations of the ICC Statute. What this implies is that the United States does not have real evidence to back its main concern about the ICC. Even though the possibility exists that an American could be charged before the court, there are sufficient safeguards to protect such a person from actually appearing before the court. The very real political implication then becomes that the United States is undermining its position and relative power in the international system by taking such a unilateral st / AFRIKAANSE OPSOMMING: Die Internasionale Kriminele Hof (IKH) is 'n opwindende ontwikkeling in die internasionale sisteem. Dit is egter nie sonder opponente nie, wat onder andere die Verenigte State van Amerika insluit. Die feit dat Amerika so sterk standpunt teen die hof inneem, skep onsekerheid in die internasionale sisteem. Die onsekerheid hou verband met Amerika se rol as die enigste oorblywende supermoontheid binne die sisteem. Amerika se hoof besorgdheid met die IKH is dat 'n Amerikaner dalk in terme van polities-gemotiveerde aanklagte voor die hof gedaag sal word. Hierdie besorgdheid word geïllustreer deur vyf basiese argumente wat geopper word. Hierdie argumente word in drie spesifieke argumente wat die basis van die tesis vorm, gefokus. Die argumente is die vrae in terms van die jurisdiksie van die IKH, die rol van die Veiligheidsraad van die Verenigde Nasies in die funksionering van die IKH, en die invloed wat die Amerikaanse grondwet op die IKH het. Daar word ook gekyk na die politieke implikasies van die Amerikaanse standpunt, beide in terme van die spesifieke argumente en in die algemeen. Die verskillende argumente word teen sekere kriteria getoets, wat die stipulasies van die IKH Statuut en ander teenargumente behels. Vanaf hierdie vergelykings kan evaluerings gedoen word, waarvan daar gevolgtrekkings gemaak word. Vir verskeie redes het nie een van die spesifieke argumente meriete as dit teen die bepalings van die IKH Statuut getoets word nie. Dit impliseer dat Amerika nie werklik bewyse vir hul hoof besorgdheid met betrekking tot die IKH het nie. Selfs al is die moontlikheid daar dat 'n Amerikaner wel voor die hof gedaag kan word, is daar voldoende waarborge om so persoon teen 'n verskyning voor die hof te beskerm. Die werklike politieke implikasie is nou dat Amerika sy posisie en relatiewe mag in die internasionale sisteem met sy eensydige standpunt teen die IKH ondermyn. Hierdie punt kan ook verdere uitgebreide implikasies hê.