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)

The Regulation of Gatherings Act 205 of 1993 is a old order piece of legislation, but gives full recognition to the right to freedom of assembly and expression. These rights are entrenched in sections 16 and 17 of the Bill of Rights and enjoy a generous interpretation. Section 5 of the Act creates limitations on these rights, as the responsible officer of a local authority is allowed to prohibit a gathering when he has reasonable grounds to believe that the police will not be able to prevent traffic disruption, injury or substantial damage to property. Given the fact that this limitation serves to protect a compelling state interest, it constitutes a reasonable and justifiable limitation in terms of section section 36 of the Bill of Rights. / Law / LL.M.

The constitutionality of affirmative action in terms of section 8 of Act 200 of 1993 is investigated. The study contends that in constitutional interpretation it is permissible to have recourse to ethical precepts as long as these are anchored within the four corners of the Constitution. It is contended that the •equality clause• does not prescribe equality of outcome in favour of substantive equality of opportunity. It is asserted that group-based affirmative action may justifiably be attacked as being unconstitutional; either on the basis that it infringes the nonbeneficiary's equality rights in terms of sections 8(1) and 8(2) or that it falls beyond the constitutional protection afforded to affirmative action in terms of section 8(3). Furthermore, group-based modalities of affirmative action may also not constitute a permissible limitation on the fundamental right to equality, if compared to an individual-based socio-economic affirmative action model. / Jurisprudence / LL. M.

Although a child's right to parental care and family life is constitutionally entrenched, many South African children are deprived of this right. Transcultural adoption could serve their need but historically this has been prohibited or discouraged by racist policies. Whether this is in keeping with the now non-racial South African society is questionable. In adoption the best interests of the child is paramount and in determining this, courts should balance children's constitutional rights to their culture of origin against their constitutional rights to non-discrimination. After considering arguments for and against transcultural adoption and the position in the United States and the United Kingdom, the writer suggests that further interdisciplinary research into the question is necessary in South Africa; inter-country adoption should be considered and law reform and governmental policy should facilitate these. / Private Law / LL. M. (Law)

Increasing use is being made of various types of scientific evidence in court. The general requirement for the admissibility of such evidence is relevance. Although expert evidence is considered to be opinion evidence, it is admissible if it can assist the court to decide a fact in issue; provided that it is also reliable. In South Africa, the initial wide judicial discretion to either admit or exclude unconstitutionally obtained evidence, has developed into a more narrowly defined discretion under the final Constitution. Examples of scientific evidence, namely, DNA evidence, fingerprints, psychiatric evidence, bite-mark evidence and polygraph evidence are considered and problems inherent in the presentation of such evidence in courts in various jurisdictions are highlighted. An investigation of the presentation and evaluation of evidence in both the accusatorial and inquisitorial systems seems to indicate that the adversarial procedure has a marked influence on the evaluation of evidence / Criminal & Procedural Law / LL.M. (Law)

Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution. / Law / LL.M.

The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International & Indigenous Law / L.L. D. (Law)

Prior to 1994, South African taxpayers had little protection from fiscal legislation or the decisions, actions or conduct of the South African Revenue Service (“SARS”) that violated their common law rights. Parliament reigned supreme and in tax matters, the strict and literal approach to the interpretation of statutes was employed, with the judiciary often quoting the mantra that there is “no equity about tax”. The Income Tax Act (Act No 58 of 1962) was littered with discriminatory and unfair provisions based on age, religion, sex and marital status. Even unreasonable decisions taken by SARS could not be reviewed by the judiciary as “unreasonableness” was not a ground for review of the exercise of a discretion by SARS. On 27 April 1994, the constitutional order changed. Parliamentary supremacy was replaced with constitutional supremacy and the rights to privacy, equality, human dignity, property and just administrative action were codified in a Bill of Rights. The codification of these fundamental rights has materially changed the nature and extent of the rights of South African taxpayers. The objective of this thesis, therefore, is to identify, analyse and discuss South African taxpayers’ rights from a constitutional perspective. The following major conclusions can be drawn from the research done: - the judiciary have been forced to reappraise their approach to the interpretation of statutes from a “strict and literal” to a “purposive” approach that is in accordance with the values underpinning the new constitutional order; - new legislation has amended some of the so-called “reverse” onus of proof provisions that were constitutionally unsound – this should result in greater fairness and consistency for affected taxpayers especially in the area of when penalties may be imposed; - the concept of clean hands and good facts can influence the judiciary when arguing that a taxpayer’s right to just administrative action has been violated; and - discriminatory and unfair legislation and conduct on the part of SARS may and should be attacked on a substantive law basis, especially where human dignity is at stake. The overall conclusion is that taxpayers’ rights are more far-reaching than prior to 1994 but still have some way to go before they are fully interpreted and developed. / Accounting Science / D.Compt.

Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10). In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39). This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed. / Mercantile Law / LL.D.

Text in Afrikaans / The broad focus of the thesis is an analysis of the meaning and the modern development of the doctrine of the separation of power (trias politica) and the application thereof in the constitutional development in South Africa. The first chapter outlines the historical restrictions that were placed on governmental authority by the trias politica doctrine. In the following chapter the application of the trias politica doctrine in different governmental systems (parliamentary, presidential and semipresidential) are analysed. In the third chapter an analysis is made of the constitutions of the former Boer republics, chronologically followed by an analysis of the 1909, 1961 and 1983 Constitutions, to establish to which extent the trias politica doctrine was incorporated in the respective constitutions. In the subsequent chapters, the focus shifts to the constitutions in the post democratic era, namely the 1993 interim Constitution and the 1996 (final) Constitution. It is evident that the new supreme Constitution and an independent judiciary yielded to a stronger adherence to the separation of power principle. It is also evident that the retainment of the parliamentary system, with a fused legislature and executive authority, inhibited a stronger separation of power. The inclusion of sosioeconomic rights in the Constitution resulted in a more direct involvement in governmental policy. However, the Constitutional Court managed to maintain a fine balance between reviewing policy and the formulation of policy. In the closing chapter a short summary is provided, followed by comments on possible alternatives to the existing system to ensure a stronger separation of powers. / Public, Constitutional and International Law / LL. D. (Constitutional, International and Indigenous Law)