This dissertation will examine the current state of our common law in relation to its treatment of exemption clauses in contracts, and will focus on recent developments which may augur greater scope and a new approach to be taken in future for South African courts to ensure fairness and the promotion of substantive justice for contracting parties faced with such provisions. Whilst it is acknowledged that exemption clauses are considered to be an integral part of most contracts and are used to facilitate the efficient running of businesses, their continued use in standard form contracts have been viewed with judicial suspicion and scrutiny as the inherent nature of these clauses have the potential to operate unfairly against a contracting party by excluding their rights of recourse which they would have otherwise had at common law. Public policy has always been a benchmark against which potentially unfair contracts terms have been measured however, the advent of the Constitution has brought about a new meaning to be prescribed to public policy as the Constitutional Court has declared that it is now deeply rooted and informed by constitutional values of dignity, equality, freedom and more recently ubuntu which is to infuse the common law principles of contract. Despite these developments, the new meaning of public policy and the apparent elevation of the spirit of ubuntu as an overarching and founding constitutional value has not been fully utilised by courts in a manner which can effectively address these potentially unfair, one-sided and abusive exemption clauses by declaring them to be contrary to public policy. Notwithstanding legislative acknowledgement and the subsequent enactment of the Consumer Protection Act 2008 which has brought about greater regulation of unfair and unconscionable contract terms, it is argued that the testing of potentially unfair and abusive exemption clauses against the dictates of public policy and ubuntu in a constitutional context may provide the South African courts with a new approach to pursue greater substantive justice in respect of these notoriously problematic clauses. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2012.

LL.M. (Labour Law) / In this minor dissertation the author argues that the Constitution will fail to uphold its own fundamental values if the rights and obligations which it enforces remains stale and outdated. A supreme body of law needs to be one which is breathing and alive, and which may adapt to fundamental changes in society. In turn, it is will be suggested that, if the Constitution remains ineffectual, labour law (which seeks to uphold its values and vision) will in turn become ineffectual. The minor dissertation will therefore consider the following pertinent question: Will the inability of the judiciary to interpret labour law in a manner that furthers the fundamental values in the Constitution result in such legislation becoming ineffective? It will be submitted that in order to promote economic and labour development one must be mindful of the social fluctuations present in light of a constitutionally supreme state. It is also stated that, in order to avoid a deadlock of complicated and outdated labour legislation which becomes inflexible, the Legislature must allow the Judiciary to develop such law to the extent that is necessary for its continued existence insofar as it complies with the Constitution. Without a strong and adhesive method in developing labour practice, social, economic and technological advancements will fail. Labour legislation must therefore be adaptive and flexible. The judiciary must therefore be adaptive and flexible in their own application of such law. In turn the Constitution is theoretically adaptive too, and its premise is achieved through the promotion of effective labour legislation, specifically.

<p>In South Africa the practice of virginity testing is most prevalent in KwaZulu-Natal amongst the Zulu and Xhosa. Proponents of the practice claim that some of the benefits include the prevention of the spread of HIV/Aids as well as teenage pregnancy and the detection of children who are sexually abused by adults, amongst others. In South Africa most black males undergo an initiation when they are approximately 16 years old to mark the transition from boyhood to manhood. Male circumcision is also performed as a religious practice amongst the Jews and Muslims.</p> <p>A number of human rights groups in South Africa, including the Commission on Gender Equality (CGE) as well as the South African Human Rights Commission (SAHRC) has called for a total ban on the practice of virginity testing on the basis that it discriminates against girls, as the practice is carried out predominantly amongst teenage girls. The CGE and SAHRC are particularly concerned about the potential for human rights violations of virginity testing.</p> <p>The problem with traditional male circumcisions in South Africa is the number of fatalities resulting from botched circumcisions and the spreading of sexually transmitted diseases through unhygienic procedures and unqualified surgeons. Also of concern are other hardships often accompanied by traditional circumcisions such as starvation, frostbite, gangrene and infection amongst other health related injuries. Thus, according to human rights activists, when carried out in these circumstances, traditional male circumcisions have the potential to violate a number of rights aimed at protecting boys including the right to physical integrity and life, in cases of the death of an initiate.</p> <p>South Africa has also ratified a number of international treaties aimed at protecting children against harmful cultural practices such as the United Nations Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As such it has been argued by rights groups that virginity testing as well as male circumcisions carried out in the conditions set out above have the potential to violate a number of provisions contained in international instruments aimed at protecting the dignity of children.</p>

No abstract available / Jurisprudence / LL.M.

This study evaluates the court's approach towards the interpretation of administrative justice with specific reference to Roman v Williams 1997(2) SACR 754(C). Section 33 of the Constitution Act 108 of 1996 guarantees the right to administration justice. The elements of this right are lawfulness, reasonableness and procedurally fairness. Our courts are bound constitutionally to promote, develop, advance and protect the fundamental rights. This study provides the most effective approach towards the development of the fundamental right in our democratic society where the Bill of Rights binds legislature, executive and judiciary. / Administrative Law / LL.M. (Administrative Law)

Magister Legum - LLM / In South Africa the practice of virginity testing is most prevalent in KwaZulu-Natal amongst the Zulu and Xhosa. Proponents of the practice claim that some of the benefits include the prevention of the spread of HIV/Aids as well as teenage pregnancy and the detection of children who are sexually abused by adults, amongst others. In South Africa most black males undergo an initiation when they are approximately 16 years old to mark the transition from boyhood to manhood. Male circumcision is also performed as a religious practice amongst the Jews and Muslims. A number of human rights groups in South Africa, including the Commission on Gender Equality (CGE) as well as the South African Human Rights Commission (SAHRC) has called for a total ban on the practice of virginity testing on the basis that it discriminates against girls, as the practice is carried out predominantly amongst teenage girls. The CGE and SAHRC are particularly concerned about the potential for human rights violations of virginity testing. The problem with traditional male circumcisions in South Africa is the number of fatalities resulting from botched circumcisions and the spreading of sexually transmitted diseases through unhygienic procedures and unqualified surgeons. Also of concern are other hardships often accompanied by traditional circumcisions such as starvation, frostbite, gangrene and infection amongst other health related injuries. Thus, according to human rights activists, when carried out in these circumstances, traditional male circumcisions have the potential to violate a number of rights aimed at protecting boys including the right to physical integrity and life, in cases of the death of an initiate. South Africa has also ratified a number of international treaties aimed at protecting children against harmful cultural practices such as the United Nations Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As such it has been argued by rights groups that virginity testing as well as male circumcisions carried out in the conditions set out above have the potential to violate a number of provisions contained in international instruments aimed at protecting the dignity of children. / South Africa

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.

South African courts face a challenge in the application of intra and extra-texual aids in constitutional interpretation. Given that the 1993 and 1996 Constitutions have brought about a new era in the exercise of human rights, the challenge that the courts face is to strike a balance between individual and communitarian values. I have argued that the African concept of ubuntu which was included in the 1993 Constitution and impliedly included in the 1996 Constitution should be applied as a constitutional value and interpretive aid. This argument is fortified by the 1996 Constitution's frequent reference to human dignity, which is accorded full meaning by ubzmtu.mtu. This concept is further examined with a vie-..v to linking it vvith African jurisprudence which is characterised by the exercise of individual human rights within the context of a group. In conclusion proposals on the way forward in the application of ubuntu are / Law / LL.M.

The author explores the traditional approaches to interpretation in a constitutional democracy, with specific emphasis on Bill of Rights interpretation. The approaches adopted by the court in India and Canada, are briefly outlined with a view to gleaning from the experience of these countries, a theory which will inform a proper approach to interpretation in a South African context. He concludes that the value-based approach is most appropriate to concretise the rights entrenched in the Bill of Rights, and specifically the so-called second and third generation rights. Addressing the fear that this may lead to an undisciplined judiciary, he concludes that there are sufficient disciplinning mechanisms to ensure that the courts do not encroach upon the other branches of government. / Constitutional, International & Indigenous Law / LL.M.

Summaries in Afrikaans and English / Text in Afrikaans / Die siviele lasterreg word gekenmerk deur verdeeldheid aangaande bewyspligtigheid. 'n Unieke situasie doen horn voor: weerlegbare regsvermoedens van onregmatigheid en animus iniuriandi word opgevolg deur verskeie regsverdigingsgronde. Bykomend hiertoe stel die Grondwet die vereiste van konstitusionele regverdiging vir beperkings op fundamentele regte. 'n Oorsig oor die regspraak in sowel die voorgrondwetlike - as na-grondwetlike bedeling, dui op 'n versuim deur die howe om behoorlik aandag te skenk aan die bewyspligtigheidsgevolge van die regverskynsels wat hulself in die lasterreg voordoen. In hierdie verhandeling word bewyspligtigheid in lastersake krities ondersoek om vas te stel of dit die reg korrek weerspieel en om 'n werkbare bewyslasformule vir lasteraksies in 'n konstitusionele litigasie te vind. Daar word voorgestel dat die probleem opgelos word deur 'n tweefase-benadering: Die eiser moet in die eerste fase die omvang van sy reg bewys en dat daarop inbreuk gemaak is. In die tweede fase moet die verweerder sy regverdigingsgronde bewys, asook dat dit konstitusioneel regverdigbaar is. / The civil law of defamation is marked by discord regarding onus of proof. A unique situation evidences itself: rebuttable presumptions of law concerning unlawfulness and animus iniuriandi are followed by various grounds of justification. In addition thereto the Constitution sets the requirement of constitutional justification for limitations on fundamental rights. An overview of case law in the pre-constitutional as well as the post-constitutional dispensation, indicates a failure by the courts to pay proper attention to the evidentiary consequences of the legal phenomena found in the law of defamation. In this dissertation onus of proof in defamation cases is critically examined to ascertain whether it reflects the law correctly and to find a workable "onus of proof" -formula for defamation cases in a constitutional dispensation. It is suggested that the problem be solved by a two stage approach: in the first phase, the plaintiff must prove the extent of his right and the encroachment thereof . In the second phase the defendant must prove his grounds of justification and show that they are constitutionally justifiable. / Constitutional, International & Indigenous Law / LL.M.