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An analysis of the South African common law defence of moderate and reasonable child chastisementMaqhosha, Noluthando January 2016 (has links)
The study sought to analyse the South African common law defence of moderate and reasonable child chastisement. Regarded by those with religious and cultural beliefs as a way of instilling child discipline, child chastisement has been a centre of contestation in recent years. Constitutionally, children have rights to care, dignity and protection. Thus, child chastisement infringes upon these rights. However, regardless of its intentions, child chastisement has an effect of inflicting pain onto its victims thereby infringing on their rights to human dignity, equality and protection. It can also lead to unintended consequences such as injury or death to its victims. Subjecting children to this cruel, inhuman and degrading action affects the development of children and sometimes haunts them at a later stage in life. In addition, child chastisement lacks the measure of determining whether it is moderate or severe, thereby making it prone to abuse or misuse. The study used a qualitative research paradigm, where data was collected from existing documents and analysed towards understanding child chastisement and finding sustainable ways of improving child welfare in the home or in society. The study also analysed the legal framework on child welfare and chastisement globally, regionally and locally. Instruments such as the UNCRC, ACRWC and the UDHR have a clear stance abolishing child chastisement. The study established that, despite the existence of global instruments promoting child care and protection, the common law defence of corporal punishment in the home and society remains a loophole that needs closing and enactment of laws that outlaws it completely.
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The development of common law under the constitution : making sense of vicariuos liability for acts and ommissions of police officersChauke, Hasani Wilson January 2010 (has links)
Thesis (LL.M.) --University of Limpopo, 2010 / Refer to document
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Custody and guardianship of children: a comparative perspective of the Bafokeng customary law and South African common lawMalete, Molly Damaria. 20 August 2012 (has links)
LL.M. / This research is a comparative study of the provisions for guardianship and custody, including maintenance of the South African common law and customary law. In customary law the emphasis is on the law of the Bafokeng people which is a tribe chosen as group of the research. The purpose of this research is to analyze the provisions of guardianship, custody and maintenance applicable to these legal systems. The analysis is divided as follows: • Guardianship and custody: (i) during the marriage; after divorce; after death of parent(s); of an extra-marital child. • Maintenance of children: (i) during the marriage; after divorce; after death of parent(s); born outside marriage (extra-marital children). The objective is to highlight the similarities and differences between the provisions of these legal systems and to come up with the conclusion whether the one is more favourable than the other in catering for the needs and interests of its subjects. The conclusion will be governed by the following issues: • Which legal system caters for the interests of its subjects? • Which legal system accords with the provisions of the Constitution Act? • Which legal system protects the interests of the child best? Having come to that conclusion, the researcher aims at indicating laws which should be considered for reform.
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Re-imagining and re-interpreting African jurisprudence under the South African ConstitutionNdima, Dial Dayana 11 1900 (has links)
Text in English / The substitution of the dominant Western jurisprudence for South Africa’s indigenous
normative values during colonial and apartheid times has resulted in a perverted
conception of law that presents Western jurisprudence as synonymous with law. In
the era of the constitutional recognition of African law where the application of the
democratic principle demands that the newly re-enfranchised African communities
deserve to be regulated by their own indigenous values, the resilience of this legal
culture has become problematic. To reverse this situation legal and constitutional
interpreters must rethink and reshape their contributions to the achievement of the
post-apartheid version of African law envisioned by the South African Constitution.
The application of African law in a free and liberated environment must reflect its
own social, political and legal cosmology in which its institutions operate within their
own indigenous frame of reference. A study of the anatomy of African jurisprudence
as a means of gaining insight into the indigenous worldview which was characterised
by the culture of communal living and the ethos of inclusiveness to counter the
prevailing hegemony of autonomous individualism, has become urgent. To achieve
this such pillars of African jurisprudence as the philosophy of ubuntu must be
exhumed in order for African law’s rehabilitation under the Constitution to be
undertaken on the basis of its authentic articulation uncontaminated by colonial and
apartheid distortions.
The task of developing the African law of the 21st century to the extent required by
the Constitution is a challenge of enormous proportions which demands an
appreciation of the historical and political environment in which African law lost its
primacy as the original legal system of South Africa after Roman-Dutch law was
imposed on the South Africa population. The revival of African law becomes more
urgent when one considers that when Africans lost control of their legal system they
had not abdicated sovereignty voluntarily to the newcomers. The validity of the
imposition of Western jurisprudence is vitiated by the colonial use of such imperial
acts as colonisation, conquest, and annexation as the basis on which the regime of
Roman-Dutch law was imposed on South Africa.
Ever since, African law has been subordinated and denigrated through colonial and
apartheid policies which relegated it, via the repugnancy clause, to a sub-system of
Roman-Dutch law with whose standards it was forced to comply. The repugnancy
clause left African law a distorted system no longer recognisable to its own
constituency. The advent of the new dispensation introduced a constitutional
framework for re-capacitating South Africa’s post-apartheid state institutions to recentre
African law as envisioned by the Constitution. This framework has become
the basis on which legislative and judicial efforts could rehabilitate the indigenous
value system in the application of African law.
The courts of the new South Africa have striven to find the synergy between
indigenous values and the Bill of Rights in order to forge areas of compatibility
between African culture and human rights. An analysis of this phase in the
development of African law, as evidenced by the present study, reveals successes
and failures on the part of the courts in their efforts to rehabilitate African law in line
with both its value system and the Bill of Rights. These findings lead to the
conclusion that whilst South Africa’s legislative and judicial institutions have not yet
achieved the envisioned version of African law, there is an adequate constitutional
framework through which they could still do so.
This study, therefore, recommends that the above institutions, especially the
courts, should adopt a theory of re-indigenisation that would guide them as they
proceed from the indigenous version of African law which is the basis on which to
apply the Bill of Rights. The application of such a theory would ensure that the
distorted ‘official’ version of African law which was imposed by colonial and
apartheid state institutions is progressively discredited and isolated from the body
of South African law and gives way to the version inspired by the Constitution. / Constitutional, International & Indigenous Law / LL.D.
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The definition of an "employee" under labour legislation : an elusive conceptKasuso, Tapiwa Givemore 17 August 2016 (has links)
Mercantile Law / LL. M. (Commercial Law)
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Re-imagining and re-interpreting African jurisprudence under the South African ConstitutionNdima, Dial Dayana 11 1900 (has links)
The substitution of the dominant Western jurisprudence for South Africa’s indigenous
normative values during colonial and apartheid times has resulted in a perverted
conception of law that presents Western jurisprudence as synonymous with law. In
the era of the constitutional recognition of African law where the application of the
democratic principle demands that the newly re-enfranchised African communities
deserve to be regulated by their own indigenous values, the resilience of this legal
culture has become problematic. To reverse this situation legal and constitutional
interpreters must rethink and reshape their contributions to the achievement of the
post-apartheid version of African law envisioned by the South African Constitution.
The application of African law in a free and liberated environment must reflect its
own social, political and legal cosmology in which its institutions operate within their
own indigenous frame of reference. A study of the anatomy of African jurisprudence
as a means of gaining insight into the indigenous worldview which was characterised
by the culture of communal living and the ethos of inclusiveness to counter the
prevailing hegemony of autonomous individualism, has become urgent. To achieve
this such pillars of African jurisprudence as the philosophy of ubuntu must be
exhumed in order for African law’s rehabilitation under the Constitution to be
undertaken on the basis of its authentic articulation uncontaminated by colonial and
apartheid distortions.
The task of developing the African law of the 21st century to the extent required by
the Constitution is a challenge of enormous proportions which demands an
appreciation of the historical and political environment in which African law lost its
primacy as the original legal system of South Africa after Roman-Dutch law was
imposed on the South Africa population. The revival of African law becomes more
urgent when one considers that when Africans lost control of their legal system they
had not abdicated sovereignty voluntarily to the newcomers. The validity of the
imposition of Western jurisprudence is vitiated by the colonial use of such imperial
acts as colonisation, conquest, and annexation as the basis on which the regime of
Roman-Dutch law was imposed on South Africa.
Ever since, African law has been subordinated and denigrated through colonial and
apartheid policies which relegated it, via the repugnancy clause, to a sub-system of
Roman-Dutch law with whose standards it was forced to comply. The repugnancy
clause left African law a distorted system no longer recognisable to its own
constituency. The advent of the new dispensation introduced a constitutional
framework for re-capacitating South Africa’s post-apartheid state institutions to recentre
African law as envisioned by the Constitution. This framework has become
the basis on which legislative and judicial efforts could rehabilitate the indigenous
value system in the application of African law.
The courts of the new South Africa have striven to find the synergy between
indigenous values and the Bill of Rights in order to forge areas of compatibility
between African culture and human rights. An analysis of this phase in the
development of African law, as evidenced by the present study, reveals successes
and failures on the part of the courts in their efforts to rehabilitate African law in line
with both its value system and the Bill of Rights. These findings lead to the
conclusion that whilst South Africa’s legislative and judicial institutions have not yet
achieved the envisioned version of African law, there is an adequate constitutional
framework through which they could still do so.
This study, therefore, recommends that the above institutions, especially the
courts, should adopt a theory of re-indigenisation that would guide them as they
proceed from the indigenous version of African law which is the basis on which to
apply the Bill of Rights. The application of such a theory would ensure that the
distorted ‘official’ version of African law which was imposed by colonial and
apartheid state institutions is progressively discredited and isolated from the body
of South African law and gives way to the version inspired by the Constitution. / Constitutional, International and Indigenous Law / LL. D.
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Regulating franchise operations in South Africa : a study of the existing legal framework with suggestions for reform.Woker, Tanya Ann January 2009 (has links)
This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
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Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance rightBatchelor, Bronwyn Le Ann January 2011 (has links)
This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. / National Research Foundation
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Harmonizing customary law and human rights law in South AfricaRamatsekisa, Tsietsi Given 16 September 2015 (has links)
LLM / Department of Public Law
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The position of unmarried fathers in South Africa: an investigation with reference to a case studyPaizes, Yulie Panayiota 30 November 2006 (has links)
This dissertation looks at the position of the unmarried father in South Africa with regard to obtaining access to his illegitimate child. The writer has focused on three distinct eras in South African family law: the position of unmarried fathers in terms of: the common law; Natural Fathers of Children Born out of Wedlock Act; and the Children's Act. The writer has further focused on a case study. This is to emphasis the difficulty which unmarried fathers have when attempting to go through the courts to have access to his child.
In terms of South African common law, fathers of illegitimate children did not have any form of parental authority over the child. The mothers of illegitimate children have full parental authority over such children. Access in terms of South African common-law is seen as an incident of parental authority. Unmarried fathers nevertheless had the right to approach the high court to obtain access to their children, if the mother of the child refuses to allow the father to have such access. In the late 1980's and early 1990's, there was an overwhelming amount of applications brought by unmarried fathers in the high courts so as to obtain access to their illegitimate children. The case of Van Erk v Holmer 1992 (2) SA 636 (W) sparked victory for unmarried fathers when the learned judge held that all unmarried fathers of children have an inherent right of access to their children. This victory was short-lived. Subsequent case law and in particular the case of B v S 1995 (3) SA 571 (A) enforced the common law and held that unmarried fathers do not have an automatic right to their illegitimate children and that such fathers will have to apply to the high court for such access. Due to the increase in litigation in the late 1980's and early 1990's regarding a father's access to his child born out of wedlock the Natural Fathers of Children Born out of Wedlock Act commenced on 4 September 1998. The South African legislature adopted the approach taken in the case of B v S 1995 (3) SA 571 (A) and rejected the approach taken in the case of Van Erk v Holmer 1992 (2) SA 636 (W) ie the common law continued to remain the approach taken in South Africa.
Legislators recognised that the approach taken in the Natural Fathers of Children Born out of Wedlock Act does not conform to the provisions of the African Charter of the Rights and the Welfare of the Child, the United Nations Convention on the Rights of the Child and equality and dignity provisions of the Constitution of the Republic of South Africa. On 19 June 2006, the Children's Act was effected and will commence once promulgated in the Government Gazette. The writer then determines whether the Children's Act has in practice changed the position of the unmarried father. / JURISPRUDENCE / LLM
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