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Die rol van diskresie by die toelaatbaarheid van getuienis wat in stryd met die grondwet verkry isNel, F. (Francisca) 11 1900 (has links)
Text in Afrikaans / Artikel 35(5) van die Grondwet 108 van 1996 handel oor die uitsluiting van
ongrondwetlike getuienis en bepaal dat sodanige getuienis uitgesluit moet word
indien toelating daarvan sal lei tot 'n onbillike verhoor of tot nadeel sal strek vir
die regspleging. Uit die bewoording van die artikel blyk dit dat die howe geen
diskresie het ten opsigte van die toelaatbaarheidsvraag nie en 'n streng
uitsluitingbenadering moet volg. Die doel van hierdie verha• ndeling is om
ondersoek in te stel na die mate van diskresie .en die wyse ·waarop diskresie
toepas word in hierdie besluitnemingsproses. Twee benaderings is deur die
howe gevolg, naamlik 'n benadering waar 'n wye diskresie uitgeoefen word en 'n
benadering waar 'n beperkte diskresie uitgeoefen word, dus 'n gekwalifiseerde uitsluitingsbenadering. Die skrywer doen aan die hand dat beide gronde vir
uitsluiting van belang is en dat die howe verkeie faktore moet oorweeg ten einde
'n beslissing te vel oor die insluiting of uitsluiting van ongrondwetlike getuienis. 'n
Balans moet dus gehandhaaf word tussen die belang van die beskuldigde op 'n
billike verhoor en die belang van die gemeenskap daarin dat regspleging nie
benadeel moet word nie en dat reg en geregtigheid moet geskied / Section 35(3) of the Constitution Act 108 of 1996 deals with the exclusion of
unconstitutionally obtained evidence and stipulates that such evidence must be
excluded if the admission would render the trial unfair or be detrimental to the
administration of justice. From the wording of the section it seems that the
courts have no jurisdiction in regard to the admissibility question and that a strict
exclusionary approach must be followed. The purpose of this dissertation is to
investigate the amount of discretion that the Courts have, and the manner in
which this discretion is applied in the process of decision making. Two
approaches were followed by the courts namely a wide discretionary approach
and an approach where a strict discretion was applied. It is submitted that botR
grounds for exclusion are of importance and that the courts must consider a
variety of factors in deciding the question on the inclusion or exclusion of
unconstitutionally obtained evidence. A balance must be struck between the
interest of the accused in a fair trial and the interest of the community that the
administration of justice must not be prejudiced and that justice must prevail. / Criminal & Procedural Law / LL.M. (Law)
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Determining matrimonial property rights on divorce : an appraisal of the legal regimes in BotswanaQuansah, E. K. 06 1900 (has links)
The bulk of the matrimonial property regimes operating in Botswana
were inherited from the country's colonial past. Since independence
there ha'> not been any realistic attempt to reform them. The thesis set
out to appraisal the legal regimes governing the determination of
matrimonial property on divorce to ascertain their efficacy in realising
the legitimate aspiration of married couples. Comparisons were made
with similar countries to determine how these have tackled problems
relating to determination of matrimonial property on divorce.
The study found that where there is a dispute about matrimonial
property in marriages out of community, the courts have no discretion
to readjust the rights of the parties. This situation adversely affect nonworking
wives who spent most of their time looking after their
husbands and children without being able to acquire capital assets.
Recognition is not given to such domestic contribution to the welfare
of the family. It was also found that the exercise of the marital power
by husbands of marriages in community of property deprives wives of
those marriages the right to administer the joint estate. The patriarchal
nature of customary law, which governs the majority of disputes about
matrimonial property, discriminates against women.
Consequently, the following, inter alia, are suggested as reform
measures.
(a) The courts should be g1ven a wide discretionary power,
circumscribed by statutory guidelines, to reallocate matrimonial
property on divorce irrespective of the matrimonial property regime that
governs the marriage. TI1e underlying principle should be equality of
sharing but this may be departed from where the circumstances of the
particular case warrant it
(b) A spouse's domestic contribution towards the welfare of the family
should be recognised.
(c) The marital power of husbands should be abolished.
(d) The provisions of the Matrimonial Causes Act should be made
applicable to customary marriages. / Private Law / LL.D.
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The jurisdictional conflict between labour and civil courts in labour matters : a critical discussion on the prevention of forum shoppingMathiba, Marcus Kgomotso 04 February 2013 (has links)
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.
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A Saxon state : Anglo-Saxonism and the English nation, 1703-1805Frazier, Dustin M. January 2013 (has links)
For the past century, medievalism studies generally and Anglo-Saxonism studies in particular have largely dismissed the eighteenth century as a dark period in English interest in the Anglo-Saxons. Recent scholarship has tended to elide Anglo-Saxon studies with Old English studies and consequently has overlooked contributions from fields such as archaeology, art history and political philosophy. This thesis provides the first re-examination of scholarly, antiquarian and popular Anglo-Saxonism in eighteenth-century England and argues that, far from disappearing, interest in Anglo-Saxon culture and history permeated British culture and made significant contributions to contemporary formulations and expressions of Englishness and English national, legal and cultural identities. Each chapter examines a different category of Anglo-Saxonist production or activity, as those categories would be distributed across current scholarship, in order to explore the ways in which the Anglo-Saxons were understood and deployed in the construction of contemporary cultural- historiographical narratives. The first three chapters contain, respectively, a review of the achievements of the ‘Oxford school' of Saxonists of the late seventeenth and early eighteenth centuries; antiquarian Anglo-Saxon studies by members of the Society of Antiquaries of London and their correspondents; and historiographical presentations of the Anglo-Saxons in local, county and national histories. Chapters four and five examine the appearance of the Anglo-Saxons in visual and dramatic art, and the role of Anglo-Saxonist legal and juridical language in eighteenth-century politics, with reference to discoveries resulting from the academic and antiquarian research outlined in chapters one to three. It is my contention that Anglo-Saxonism came to serve as a unifying ideology of origins for English citizens concerned with national history, and political and social institutions. As a popular as well as scholarly ideology, Anglo-Saxonism also came to define English national character and values, an English identity recognised and celebrated as such both at home and abroad.
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Staging legal authority : ideas of law in Caroline dramaDyson, Jessica January 2007 (has links)
This thesis seeks to place drama of the Caroline commercial theatre in its contemporary political and legal context; particularly, it addresses the ways in which the struggle for supremacy between the royal prerogative, common law and local custom is constructed and negotiated in plays of the period. It argues that as the reign of Charles I progresses, the divine right and absolute power of the monarchy on stage begins to lose its authority, as playwrights, particularly Massinger and Brome, present a decline from divinity into the presentation of an arbitrary man who seeks to impose and increase his authority by enforcing obedience to selfish and wilful actions and demands. This decline from divinity, I argue, allows for the rise of a competing legitimate legal authority in the form of common law. Engaging with the contemporary discourse of custom, reason and law which pervades legal tracts of the period such as Coke’s Institutes and Reports and Davies’ ‘Preface Dedicatory’ to Le Primer Report des Cases & Matters en Ley resolues & adiudges en les Courts del Roy en Ireland, drama by Brome, Jonson, Massinger and Shirley presents arbitrary absolutism as madness, and adherence to customary common law as reason which restores order. In this climate, the drama suggests, royal manipulation of the law for personal ends, of which Charles I was often accused, destabilises law and legal authority. This destabilisation of legal authority is examined in a broader context in plays set in areas outwith London, geographically distant from central authority. The thesis places these plays in the context of Charles I’s attempts to centralise local law enforcement through such publications as the Book of Orders. When maintaining order in the provinces came into conflict with central legislation, the local officials exercised what Keith Wrightson describes as ‘two concepts of order’, turning a blind eye to certain activities when strict enforcement of law would create rather than dissolve local tensions. In both attempting to insist on unity between the centre and the provinces through tighter control of local officials, and dividing the centre from the provinces in the dissolution of Parliament, Charles’s government was, the plays suggest, in danger not only of destabilising and decentralising legal authority but of fragmenting it. This thesis argues that drama provides a medium whereby the politico-legal debates of the period may be presented to, and debated by, a wider audience than the more technical contemporary legal arguments, and, during Charles I’s personal rule, the theatre became a public forum for debate when Parliament was unavailable.
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Comparative and critical analysis of the doctrine of exemption/frustration/force majeure under the United Nations Convention on the Contract for International Sale of Goods, English law and UNIDROIT principlesNwafor, Ndubuisi Augustine January 2015 (has links)
This thesis attempts to critically and comparatively analyse the doctrine of exemption/frustration /force majeure under the United Nations Convention on the Contract for International Sale of Goods (CISG) the UNIDRIOT Principles of International Commercial Contracts (UNIDROIT) and the English Law. The doctrine of exemption/frustration/force majeure is very important in the area of contract and commercial law, it is a doctrine deeply rooted in fairness and allows a party to be excused from performing an obligation in a contract if at the conclusion of the contract an inhibition beyond the foreseeable control of the party happens to render the performance of the contract impossible. However, it is not easy to effectively streamline this doctrine and properly determine its applications. It has been observed in this thesis that, the doctrines of exemption/frustration /force majeure are not exactly the same; this thesis explores in details severally and jointly the various differences and similarities in the interpretations and applications of these impossibility doctrines. For instance, the open and flexible use of words in the definition of this doctrine under the CISG and the UNIDROIT Principles left much to be desired. Thus, it is one of the succinct arguments of this thesis that couching international law in loose words will work against the uniformity of application of this law, due to the different interpretations national law courts will be subjecting it to. This among other issues retarded the growth and development of the doctrine of exemption and force majeure. Furthermore, English law stance on the doctrine of frustration which can be gleaned from both the Sale of Goods Act of 1979 and the Common law are far from being adequate and need to be updated. This thesis therefore incisively laid bare the applications, interpretations and way forward for the doctrine of exemption/frustration/force majeure under the legal instruments of focus of this work. The thesis also comparatively compares the relationship between the doctrine of frustration/force majeure/exemption and other related doctrines like mistake, termination, avoidance, risk, and hardship. The thesis is concluded with a Draft Model Frustration Clause (DMFC) which is an attempt to rise above the status quo doctrine of frustration in the extant laws and develop a frustration clause that will be able to provide answers to the many flaws that trail these laws.
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Srovnání povinnosti péče řádného hospodáře člena statutárního orgánu v České republice a odpovídající povinnosti člena statutárního orgánu v Irsku / A comparison of due managerial care of a member of governing body in the Czech Republic and a comparable duty of a member of governing body in IrelandPečinka, Martin January 2017 (has links)
This paper deals with a comparison between the Czech duty of due managerial care of a member of governing body of limited company and the Irish non-fiduciary duty to exercise care, skill and diligence of a director of limited company (hereinafter also referred as "duty of care"). The paper aims to find out a possible way to improve legislation of the duty of due managerial care on the basis of comparison with the duty of care. The duty of care sets the ground for the comparison, therefore the paper deals first with the Irish legal status of the duty of care, which has been recently changed by the Companies Act 2014. Despite of the codification of the directors' duties, the core of interpretation and application of the duty of care still rests in judicial decisions. Nevertheless, the change of source and statutory wording of the duty means that the substance of Re City Equitable [1925] does not represent a good law anymore. The standard of care of Re City Equitable [1925] has been replaced by the minimal objective standard based on the British judgment Re D'Jan of London [1994]. The content of the duty of care is determined on the case by case basis, but in any event it consists of conclusions of the British judgment Re Barings [1999], which has been accepted by the Irish courts in restriction...
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The action of dependants from a comparative and an African perspectiveMokotong, Matshilane 10 1900 (has links)
The available sources on the dependency action in South Africa do not mention the presence or absence of traditional values. This study was prompted by a simple curiosity to discover the traditional legal values of the dependency action for loss of support. Accordingly, the study critically examines the action of dependants for loss of support and other related losses in South Africa, Botswana and Lesotho from an African perspective. It then compares this to its application in Australia, a country that is known for its recognition and inclusion of indigenous Australian customary law. The study recommends that traditional values should be preserved in the records of the legal system, as it might stimulate a discussion, which could lead to the culmination of a single dependency action tailored to fit the whole nation and all its different cultures and religions. / Private Law
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The constitutionality of vicarious liability in the context of the South African labour law : a comparative studyVan Eeden, Albert Jacob 03 July 2014 (has links)
If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LL. M.
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Odpovědnost za škodu způsobenou vadou výrobku / Liability for Damage Caused by a Defective ProductŠťovíček, Petr January 2012 (has links)
Dissertation Thesis Abstract - Liability for Damage Caused by A Defective Product JUDr. Petr Šťovíček The subject-matter of the dissertation thesis is the relationship of legal liability for damage inflicted upon a consumer by a defective product. The paper describes the statutory definition of the relationship, in particular, without limitation, the preconditions to the establishment of liability of the individual entities on the part of entrepreneurs participating in all phases of the product distribution from the moment of its manufacturing, or, as the case may be, it import to the Czech Republic, to the moment of its sale to the end consumer; limits of the liability and possibilities through which the consumer may claim compensation of the caused damage. The first part of the paper focuses on the above mentioned issued of general legal regulation applicable to liability, its historical development and types; it has a rather generally descriptive nature. Special civil law regulation of liability is provided for also in a number of special Acts, in particular in Act No. 59/1998 Coll., on Liability for Damage Caused by A Product Defect. The second part of the thesis provides an outline of the legal regulation covering the sphere of consumer protection with respect to liability relationships incurring in...
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