Thesis (MPA)--Stellenbosch University, 2000. / ENGLISH ABSTRACT: The focus in this research report is the violation of the constitutional rights of a young person in conflict with the law in the Cape Town Magisterial District. This violation is caused by the lack of collaboration between the different role players. The situation can be rectified with a policy intervention which will ensure multi-disciplinary collaboration between the role players. The researcher proves that stipulations in section 28 of the Constitution, Act 108 of 1996, are violated because the different role players in the juvenile justice system of Cape Town magisterial district work in a fragmented manner and do not operate as a unit. The young person in conflict with law is harmed in this process. The situation can be rectified through a policy intervention. The policy intervention entails a uniform administrative procedure, the drafting and implementation of a working agreement between the role players, establishing a communication network, combined and integrated training and a multi-disciplinary committee that evaluates and monitors these aspects. / AFRIKAANSE OPSOMMING: Die fokus van hierdie navorsingverslag is die skending van die grondwetlike regte van die jong persoon in botsing met die gereg binne die Kaapstad se landdrosdistrik. Die skendings is vanweë die gebrek aan samewerking tussen die verskillende rolspelers. Die situasie kan deur middel van 'n beleidintervensie reggestel word ten einde multi-dissiplinêre samewerking tussen die rolspelers te verseker. Die navorser bewys dat bepalings in artikel 28 van die Grondwet, Wet 108 van 1996, geskend word omdat die verskillende rolspelers in die jeugregstel van Kaapstad se landdrosdistrik gefragmenteerd werk en nie as 'n eenheid funksioneer nie. Die jong persoon in botsing met die gereg word benadeel in die proses. Die situasie kan deur middel van 'n beleidsintervensie reggestel word. Die beleidsintervensie behels dat daar 'n eenvormige administratiewe proses gevolg word, 'n samewerkingsooreenkoms tussen die rolspelers opgestel word, 'n kommunikasienetwerk gevestig word, gesamentlike en geïntegreerde opleiding plaasvind en dat 'n multi-dissiplinêre komitee die gemelde aspekte evalueer en moniteer.

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.

A critical and in-depth discussion of the powers of the labour court to review arbitration awards of the Commission for Conciliation, Mediation and Arbitration, the application of the author's findings relating to common-law, legislation and case law and a critical analysis thereof. Special reference is made to the provisions of sections 145 and 158(1)(g) of the Labour Relations Act 66 of 1995 including, in particular, the alternative application thereof in practice and scope for improvement in order to address potential prejudice to parties occasioned by the compulsory nature of (certain) dispute resolutions. This thesis incorporates a comparative study of the British and German labour law systems with reference to the relevant appeal and/or review procedures (as applied in their tribunals/courts), together with a discussion and application of certain other provisions relevant to South Africa labour law. / Jurisprudence / LL.M

This study involves a critical appraisal of the legal implications of South Africa’s withdrawal from the International Criminal Court (ICC) in the context of its international and regional human rights obligations. The dissertation also investigates the history and formation of the ICC, South Africa’s involvement and its role as a guardian of international and regional human rights obligations in Africa. The study reviews the circumstances leading to South Africa’s notice of withdrawal from the ICC, including the legal implications and international human rights obligations. This inquiry considers South Africa’s proposed withdrawal from the ICC which is supported by points of departure and a comprehensive literature review. The decision to withdraw from the ICC is considered to be a political one. However, this study raises questions about the executive’s withdrawal in regard to its domestic, regional and international human rights obligations, irrespective of whether it is a member of the ICC. The study surveys the background to South Africa’s participation in the ICC, its membership of the African Union and the implications of ICC membership including the obligations imposed on member states. / Criminal and Procedural Law / LL. M.

Text in Afrikaans / This study is about the provision of a prototype court preparation programme for the primary school child that had been sexually assaulted. The programme is developed from a Gestalt approach. Literature regarding several existing court preparation programmes was studied and compared in order to identify certain themes for the child's preparation. Knowledge regarding the court, procedures and the functions of the various role players was conveyed to the child with emphasis on the child's role as witness. The research strategy utilised in the study was that of the intervention research and specifically the D&D-model that comprises six phases. The study incorporates the first three phases plus the first step of the fourth phase. Semi-structured interviews and focus groups were utilised to establish which themes could be addressed to support the child towards being a credible witness. These themes are summarised in the court preparation programme and are addressed from the Gestalt approach. / Social Work / M.Diac. (Spelterapie)

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)

In this project the various International Instruments, namely the United Nations Convention of the Rights of the Child; 1989, the Beijing Rules and the African Charter, relating to the guidelines of the establishment of a minimum age for criminal capacity are furnished. The developments regarding the issue of criminal capacity since 1998 in Australia, the United Kingdom and Hong Kong are highlighted. The historical position and the current position in South African law with regard to the issue of criminal capacity are discussed as well as the implementation thereof by our courts. The statistics on children under 14 years in prison over the past five years are furnished. The introduction of the Child Justice Bill, 2002 by Parliament and the deliberations following the introduction, focusing on the issue of criminal capacity is highlighted. The proposed provisions of the Child Justice Bill, 49 of 2002 codifying the present common law presumptions and the raising of the minimum age for criminal capacity are furnished. The evaluation of criminal capacity and the important factors to be assessed are discussed as provided for in the Child Justice Bill, 49 of 2002. A practical illustration of a case where the criminal capacity of a child offender was considered by the court is, discussed and other important developmental factors that should also be taken into consideration by the court are identified and discussed. Important issues relating to criminal capacity, namely, time and number of assessments, testimonial competency of the child offender, evolving capacities and age determination are discussed and possible problems identified and some solutions offered. The research included an 11-question questionnaire to various professionals working in field of child justice regarding the issue of criminal capacity and the evaluation thereof. / Criminal and Procedural law / D.Litt. et Phil. (Criminology)

A study of silences: as a metaphysics of the law, juridification silences the text of the law in order to enable an allegorical reading of the law. This silencing of the legal text can only be avoided through a non-metaphysical archaeological reading. Similarly, the programme of comparative labour law is silent at its most pivotal points, leaving some concerns of the programme indeterminate and indeterminable. As context, the dominant discourses of the labour law systems of the Federal Republic of Germany (Tarifautonomie), Great Britain (collective laizzesfaire) and South Africa (fairness) are identified and the agents of the jurisprudence (the courts) are briefly outlined. The silence operating within the phenomenology of the labour judiciary and the concept of a 'court' is also examined. The study then proceeds to read, in an archaeological manner, the industrial action jurisprudence in Germany, Great Britain and South Africa, such readings again yielding silences within the discourse of the law. The silences occurring throughout (and the resulting normative breaches in the rationality of the legal discourse) are the prerequisites for juridification, a process in terms of which the metajuridical standard is imported into the legal normative system and thereby rendered part of the archival discourse of the law. / LL.D.

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 and Indigenous Law / L.L. D. (Law)