Die globale (Trink-)Wasserkrise, welche insbesondere für vulnerable Bevölkerungsgruppen eine existenzielle Bedrohung darstellt, hat die Frage nach einem verbindlichen Menschenrecht auf Zugang zu sauberem Trinkwasser (HRW) ins Zentrum internationaler Aufmerksamkeit gerückt. In der vorliegenden Arbeit wird die Bedeutung der Allgemeinen Bemerkung Nr. 15 des Ausschusses für wirtschaftliche, soziale und kulturelle Rechte (CESCR) für die Festlegung normativer Standards und die völkerrechtliche Verankerung des HRW untersucht. Eine Analyse von Staatenberichten und nationaler Spruchpraxis soll Aufschluss über die Wirkungskraft der Allgemeinen Bemerkung Nr. 15 geben. Mit Blick auf Diskurse in relevanten UN-Gremien wie der Generalversammlung und dem Menschenrechtsrat soll weiterhin die mögliche völkergewohnheitsrechtliche Relevanz des Rechts beleuchtet und die Rolle entwicklungspolitischer Initiativen für die Harmonisierung der Staatenpraxis analysiert werden.

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.

In parallel with land devolution, the Government of Vietnam has launched reforestation programs aiming to increase the forest cover of the country and to improve the living of local population. In this context, conflicts between the state and local people over land and forest have been entailed or even intensified. To be successful, restoration must „fit‟ with ongoing local patterns of land and forest use. In the uplands of Vietnam, it is recognised that understanding of the current land and forest use by ethnic minority groups is crucial for objective oriented development of land and forest management. However, such understanding is lacking to a wide extent. This research looks into the current land and forest use by the Hmong people and tries to elaborate scenario for harmonising the governmental reforestation program with local patterns of land and forest use. The conceptual framework of the research is adapted from the Human Ecosystem Model (Machlis et al., 1997). For this study, both case study and survey are conducted. Three Hmong villages considered as three cases are selected based on predetermined criteria. In each of the selected villages, a mix of qualitative and quantitative methods, including Rapid Rural Appraisal, Land Use Inventory, Forest Inventory and Household Survey, is employed to capture the required data sets. The study results show the current patterns of land and forest use by the Hmong people in their village territories for their subsistence. Land use is virtually shaped by the physical attributes of the land and closely related to elements of the critical resources and the social system at the village, such as population, production tools, cropping seasons, wealth and knowledge. There are also close links between tree/forest use and the elements of the critical resources and the social system at the village, such as extraction tools, belief in Gods, extracting seasons, gender and local knowledge. Furthermore, following cultural traditions, the uses of forests customarily claimed either by individual households or by individual clans or by the village as a whole are strictly regulated by the system of customary tenure, customary and locally developed rules, and traditional and village institutions rather than the system of formal tenure, rules and institutions. However, the informal system has not been officially recognised by the state yet. The governmental reforestation project has been followed top-down approach, not taking into account the local reality. The project has brought about no tangible benefits to the villagers in terms of cash, forest products and others. Instead, conflicts between the state institutions and the villagers over land and forest have arisen. Lack of the villagers‟ participation in planning and decision-making concerning the project is the main reason explaining the conflict situations. It is posited that participatory planning of the project at village level can help to harmonise the project with local pattern of land and forest use. The human ecosystem model serves to integrate data related to concerned variables, and has been used as the basis for the elaboration of the harmonising scenario. Besides the involvement of the state/state institutions and the villagers/village institutions, involvement of a mediator as a third party seems to be helpful to harmonise the contrary positions of the two principle parties with regard to the use and management of land and forest resources. / Im Zuge der Dezentralisierung für den Bereich der Landnutzung hat die Regierung Vietnams Programme zur Wiederaufforstung initiiert, die auf Erweiterung der Waldbedeckung und Verbesserung des Lebens lokaler dörflicher Bevölkerung abzielen. In diesem Zusammenhang traten jedoch Konflikte zwischen Staat und lokaler Bevölkerung zu Tage oder bestehende Konfliktsituationen haben sich verstärkt. Programme der Wiederbegründung von Wald können nur erfolgreich sein, wenn sie mit aktuellen lokalen Mustern der Land- und Waldnutzung abgestimmt sind. In den Berggebieten Vietnams ist das Verständnis der Land- und Waldnutzung durch ethnische Minderheiten von zentraler Bedeutung für die zielorientierte Entwicklung der Bewirtschaftung von Land und Wald. Bisher fehlt das entsprechende Verständnis weitgehend. Vorliegende Forschung erkundet die derzeitige Land- und Waldnutzung der ethnischen Gruppe der Hmong. Ein Szenario zur Harmonisierung des staatlichen Aufforstungsprogramms mit lokaler Land- und Waldnutzung wird erarbeitet. Das konzeptionelle Vorgehen folgt dem Human Ecosystem Model (HEM) nach Machlis et al. (1997). Die Forschung umfasst Fallstudie und Survey. Drei Hmong-Dörfer repräsentieren drei Fallstudien, die auf der Grundlage vorbestimmter Kriterien ausgewählt wurden. In jedem der Dörfer wurden die erforderlichen Datensätze durch ein Mix von qualitativen und quantitativen Methoden wie Rapid Rural Appraisal, Landnutzungsinventur, Waldinventur und Befragung der Haushalte erhoben. Die Ergebnisse der Studie zeigen die derzeitigen Muster von Land- und Waldnutzung der Hmong in den Territorien ihrer Dörfer mit Orientierung auf Sicherung des Lebens. Die Landnutzung ist wesentlich bestimmt durch die natürlichen Eigenschaften des Landes und eng gebunden an Elemente der „kritischen Ressourcen“ und des „sozialen Systems“ auf Dorfebene wie Demografie, Geräte der Produktion, Wachstumsperioden, Wohlstand und Wissen. Gleiches gilt für die Waldnutzung mit dem Beziehungsgefüge zwischen Nutzung und Elementen der „kritischen Ressourcen“ sowie des „sozialen Systems“ im Dorf wie Gerät für die Ernte, Glaube an Gottheiten, Erntezeiträume, Geschlechter und lokales Wissen. Im Weiteren erfolgt die Waldnutzung vor allem auf traditioneller Grundlage durch Haushalte, Clans oder Dorfgemeinschaften entsprechend strikter Regelung im Rahmen des Gewohnheitsrechts, des traditionellen Besitzes, traditioneller und lokal entwickelter Regeln, traditioneller und anderer dörflicher Institutionen im Vergleich zu formalem Besitz, formalen Regeln und Institutionen. Allerdings ist das informelle System staatlich bis jetzt nicht anerkannt. Das staatliche Wiederaufforstungsprojekt folgt dem typischen top-down Verfahren ohne Beachtung der lokalen Realität. Das Projekt erbrachte keine nennneswerten Vorteile für die Dorfbewohner in Form von Geld, Waldprodukten o. a. Im Gegenteil, es haben sich Konflikte zwischen den staatlichen Institutionen und den Dorfbewohnern um Land und Wald ergeben. Fehlende lokale Beteiligung an Projektplanung und Entscheidungsfindung erklären die Konfliktsituation. Es ist zu schlussfolgern, dass partizipative Planung auf Dorfebene helfen kann, das Projekt mit den lokalen Bedingungen von Land- und Waldnutzung zu harmonisieren. Das Human Ecosystem Model diente dazu, relevante Variable zu integrieren und wurde als Grundlage für die Erarbeitung des Szenarios zur Harmonisierung genutzt. Neben dem Staat und den Dörfern wird die Beteiligung eines Mediatoren als dritter Partei für die Harmoniserung der gegensätzlichen Positionen der zwei wichtigen Interessengruppen zu Nutzung und Management von Land- und Waldressourcen als nützlich erachtet.

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.

In parallel with land devolution, the Government of Vietnam has launched reforestation programs aiming to increase the forest cover of the country and to improve the living of local population. In this context, conflicts between the state and local people over land and forest have been entailed or even intensified. To be successful, restoration must „fit‟ with ongoing local patterns of land and forest use. In the uplands of Vietnam, it is recognised that understanding of the current land and forest use by ethnic minority groups is crucial for objective oriented development of land and forest management. However, such understanding is lacking to a wide extent. This research looks into the current land and forest use by the Hmong people and tries to elaborate scenario for harmonising the governmental reforestation program with local patterns of land and forest use. The conceptual framework of the research is adapted from the Human Ecosystem Model (Machlis et al., 1997). For this study, both case study and survey are conducted. Three Hmong villages considered as three cases are selected based on predetermined criteria. In each of the selected villages, a mix of qualitative and quantitative methods, including Rapid Rural Appraisal, Land Use Inventory, Forest Inventory and Household Survey, is employed to capture the required data sets. The study results show the current patterns of land and forest use by the Hmong people in their village territories for their subsistence. Land use is virtually shaped by the physical attributes of the land and closely related to elements of the critical resources and the social system at the village, such as population, production tools, cropping seasons, wealth and knowledge. There are also close links between tree/forest use and the elements of the critical resources and the social system at the village, such as extraction tools, belief in Gods, extracting seasons, gender and local knowledge. Furthermore, following cultural traditions, the uses of forests customarily claimed either by individual households or by individual clans or by the village as a whole are strictly regulated by the system of customary tenure, customary and locally developed rules, and traditional and village institutions rather than the system of formal tenure, rules and institutions. However, the informal system has not been officially recognised by the state yet. The governmental reforestation project has been followed top-down approach, not taking into account the local reality. The project has brought about no tangible benefits to the villagers in terms of cash, forest products and others. Instead, conflicts between the state institutions and the villagers over land and forest have arisen. Lack of the villagers‟ participation in planning and decision-making concerning the project is the main reason explaining the conflict situations. It is posited that participatory planning of the project at village level can help to harmonise the project with local pattern of land and forest use. The human ecosystem model serves to integrate data related to concerned variables, and has been used as the basis for the elaboration of the harmonising scenario. Besides the involvement of the state/state institutions and the villagers/village institutions, involvement of a mediator as a third party seems to be helpful to harmonise the contrary positions of the two principle parties with regard to the use and management of land and forest resources. / Im Zuge der Dezentralisierung für den Bereich der Landnutzung hat die Regierung Vietnams Programme zur Wiederaufforstung initiiert, die auf Erweiterung der Waldbedeckung und Verbesserung des Lebens lokaler dörflicher Bevölkerung abzielen. In diesem Zusammenhang traten jedoch Konflikte zwischen Staat und lokaler Bevölkerung zu Tage oder bestehende Konfliktsituationen haben sich verstärkt. Programme der Wiederbegründung von Wald können nur erfolgreich sein, wenn sie mit aktuellen lokalen Mustern der Land- und Waldnutzung abgestimmt sind. In den Berggebieten Vietnams ist das Verständnis der Land- und Waldnutzung durch ethnische Minderheiten von zentraler Bedeutung für die zielorientierte Entwicklung der Bewirtschaftung von Land und Wald. Bisher fehlt das entsprechende Verständnis weitgehend. Vorliegende Forschung erkundet die derzeitige Land- und Waldnutzung der ethnischen Gruppe der Hmong. Ein Szenario zur Harmonisierung des staatlichen Aufforstungsprogramms mit lokaler Land- und Waldnutzung wird erarbeitet. Das konzeptionelle Vorgehen folgt dem Human Ecosystem Model (HEM) nach Machlis et al. (1997). Die Forschung umfasst Fallstudie und Survey. Drei Hmong-Dörfer repräsentieren drei Fallstudien, die auf der Grundlage vorbestimmter Kriterien ausgewählt wurden. In jedem der Dörfer wurden die erforderlichen Datensätze durch ein Mix von qualitativen und quantitativen Methoden wie Rapid Rural Appraisal, Landnutzungsinventur, Waldinventur und Befragung der Haushalte erhoben. Die Ergebnisse der Studie zeigen die derzeitigen Muster von Land- und Waldnutzung der Hmong in den Territorien ihrer Dörfer mit Orientierung auf Sicherung des Lebens. Die Landnutzung ist wesentlich bestimmt durch die natürlichen Eigenschaften des Landes und eng gebunden an Elemente der „kritischen Ressourcen“ und des „sozialen Systems“ auf Dorfebene wie Demografie, Geräte der Produktion, Wachstumsperioden, Wohlstand und Wissen. Gleiches gilt für die Waldnutzung mit dem Beziehungsgefüge zwischen Nutzung und Elementen der „kritischen Ressourcen“ sowie des „sozialen Systems“ im Dorf wie Gerät für die Ernte, Glaube an Gottheiten, Erntezeiträume, Geschlechter und lokales Wissen. Im Weiteren erfolgt die Waldnutzung vor allem auf traditioneller Grundlage durch Haushalte, Clans oder Dorfgemeinschaften entsprechend strikter Regelung im Rahmen des Gewohnheitsrechts, des traditionellen Besitzes, traditioneller und lokal entwickelter Regeln, traditioneller und anderer dörflicher Institutionen im Vergleich zu formalem Besitz, formalen Regeln und Institutionen. Allerdings ist das informelle System staatlich bis jetzt nicht anerkannt. Das staatliche Wiederaufforstungsprojekt folgt dem typischen top-down Verfahren ohne Beachtung der lokalen Realität. Das Projekt erbrachte keine nennneswerten Vorteile für die Dorfbewohner in Form von Geld, Waldprodukten o. a. Im Gegenteil, es haben sich Konflikte zwischen den staatlichen Institutionen und den Dorfbewohnern um Land und Wald ergeben. Fehlende lokale Beteiligung an Projektplanung und Entscheidungsfindung erklären die Konfliktsituation. Es ist zu schlussfolgern, dass partizipative Planung auf Dorfebene helfen kann, das Projekt mit den lokalen Bedingungen von Land- und Waldnutzung zu harmonisieren. Das Human Ecosystem Model diente dazu, relevante Variable zu integrieren und wurde als Grundlage für die Erarbeitung des Szenarios zur Harmonisierung genutzt. Neben dem Staat und den Dörfern wird die Beteiligung eines Mediatoren als dritter Partei für die Harmoniserung der gegensätzlichen Positionen der zwei wichtigen Interessengruppen zu Nutzung und Management von Land- und Waldressourcen als nützlich erachtet.

The South African legal system is dualistic in nature with the one part consisting of the Western common law and the other consisting of African customary law. Although these two legal systems enjoy equal recognition, they regularly come into conflict with each other due to their divergent value systems. It is especially within the context of the South African criminal law that this conflict becomes apparent, because an accused's conduct can be viewed as lawful in terms of African customary law, but unlawful in terms of the South African common law. In such cases the accused may attempt to raise a cultural defence by putting forth evidence of his cultural background or values to convince the court that his prima facie unlawful conduct is actually lawful and that he should escape criminal liability. Alternatively, an accused may put forth evidence of his cultural background or values in an attempt to receive a lighter sentence. The question which therefore arises is whether a so-called "cultural defence" exists in the South African criminal law, and if so, what the influence of such a defence on the South African criminal law is. The conflict between African Customary law and the South African common law in the context of the criminal law arises due to the fact that the indigenous belief in witchcraft, (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the phenomenon of "necklacing" and the custom of ukuthwala can result in the commission of various common law crimes. In the case of witch-killings, the perpetrators can be charged with the common law crimes of murder or, if the victim survives, attempted murder, common assault or assault with intent to do grievous bodily harm. Similarly, necklacing, as a method used for killing witches, can also result in the commission of these common law crimes. What is more, the perpetrators of witch-killings can also be charged with the statutory crimes of accusing someone of witchcraft, pointing the victim out as being a witch or wizard or injuring a person based on information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the common law crimes of murder or, if the victim survives, common assault or assault with intent to do grievous bodily harm. The perpetrators of mutimurders can also face charges of murder or attempted murder, if the victim survives. The indigenous custom of ukuthwala can result in the commission of common law crimes such as abduction, kidnapping and common assault, as well as the statutory crime of rape. A perusal of South African case law dealing with the indigenous beliefs and customs above reveals that the accused in such cases have indeed attempted to put forth evidence of their indigenous beliefs or customs to persuade the criminal courts that they should escape criminal liability for a particular crime. In fact, these arguments were raised within the context of the existing common law defences such as private defence, necessity, involuntary conduct and a lack of criminal capacity. However, the South African criminal courts have up till now in general been unwilling to accept arguments of indigenous beliefs and customs to serve as a defence, either alone or within the context of the existing defences above, for the commission of a common law or statutory crime. They have, however, been more willing to accept evidence of an accused's indigenous belief or custom to serve as a mitigating factor during sentencing. The extent to which an accused's cultural background will serve as a mitigating factor will, of course, depend on the facts and circumstances of each case. As a result an accused who is charged with the commission of a culturally motivated crime has no guarantee that his cultural background and values will in fact be considered as a mitigating factor during his criminal trial. It is thus ultimately concluded that a so-called "cultural defence" does not exist in the South African Criminal law. The indigenous beliefs and customs above not only result in the commission of common law or statutory crimes, but also in the infringement of various fundamental human rights in the Constitution. Witch-killings result in the infringement of the constitutional right to life and the right to freedom and security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in the Constitution. Similarly, muti-murders and necklacing also result in the infringement of the right to life and the right to freedom and security of the person entrenched in the Constitution. The custom of ukuthwala results in the infringement of the right to equality, the right to freedom and security of the person, the right to live in an environment that is not harmful to health or well-being, the right not to be subjected to slavery, servitude or forced labour, the right to basic education and other constitutional safeguards aimed at protecting children. In light of the constitutional right to freedom of culture and the right to freely participate in a cultural life of one's choosing the question can be asked whether the time has come to formally recognise a cultural defence in the South African criminal law. In this study it is argued that these constitutional rights do not warrant the formal recognition of a cultural defence. Instead, it is recommended that the conflict between African customary law and the South African common law can be resolved by bringing indigenous beliefs and customs in line with the values that underpin the Constitution as the supreme law of South Africa. Of course, this does not mean that the courts should ignore cultural considerations during a criminal trial if and when they arise. In fact, as pointed out in this study, the courts have a constitutional duty to apply African customary law when that law is applicable. It goes without saying that, when an accused attempts to escape criminal liability for his unlawful conduct by raising arguments of his cultural background, African customary law will be applicable and must be considered by the court. This in turn raises the question as to how the criminal courts can ensure that they give enough consideration to the possibility that an accused's criminal conduct was culturally motivated so as to comply with their constitutional mandate referred to above. Although it would be nearly impossible to formulate a perfect or flawless approach according to which a judicial officer can adjudicate criminal matters involving culturally motivated crimes, the author suggests the following practical approach which may provide some guidance to judicial officers in dealing with cases involving culturally motivated crimes: • Step 1: Consider whether the commission of the crime was culturally motivated or not. If it seems as though the accused did not commit a culturally motivated crime, the trial can continue on that basis. If, however, it is evident that the accused indeed committed a culturally motivated crime, step 2 follows. • Step 2: Once it has been determined that the commission of the crime was culturally motivated, the next step is to determine which indigenous belief or custom led to the commission of the crime. Once the relevant indigenous belief or custom has been identified, step 3 follows. • Step 3: When it is clear which indigenous belief or custom led to the accused's commission of the crime, the next step is to determine whether arguments pertaining to that particular indigenous belief or custom may be raised within the context of the existing defences in the South African Criminal law in order to exclude the accused's criminal liability. If an accused relies on one of the existing defences in the South African criminal law, he will have to lay a proper evidential foundation for his defence before the court. In assessing the evidence put forth by the accused, the judicial officer must consider the judgment and reasoning in previous cases dealing with the particular indigenous belief or custom. A judicial officer must also consider the values underpinning the Constitution when conducting such an assessment. If a judicial officer upholds an accused's defence, the accused is acquitted. However, if the judicial officer rejects an accused's defence, the accused must be convicted and step 4 follows. • Step 4: Once an accused has been convicted, a court should consider whether arguments of his cultural background can serve as an extenuating circumstance, mitigating the punishment to be imposed on him. However, the practical approach above merely serves as a suggestion to judicial officers in dealing with culturally motivated crimes and ultimately it will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two legal systems. The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014

Self-determination is a peoples' right to freely determine their political, economic and cultural destiny without external interference. However, the cultivation of a culture of respect for self-determination remains the greatest challenge to post-colonial Africa. Dictatorships and other oppressive regimes very substantially affected Africa's efforts to develop a culture of constitutionalism and respect for the right of peoples to selfdetermination. Most African countries typify the failed effort of trying to establish an enduring democracy and respect for the right of peoples to take part in the government. After five decades of transition from colonialism to constitutional democracy, most African peoples are still under the yoke of governments they consider undesirable or oppressive. This work primarily sets out to investigate if the denial of the right of peoples to self-determination justifies the use of force to secure such a right. Since independence, Africa has experienced armed rebel groups seeking either to effect radical transformation of the whole state or to separate from the state to which they belong in order to create a new state. In the main, this study explores the extent to which rebel groups acting on behalf of peoples are or are not allowed to use force for the attainment of self-determination. The thesis begins with an historical development of the right to self-determination in international law. It initially examines how self-determination has developed from a political principle to a legal right. Despite the fact that self-determination is one of the core principles of the UN Charter, there are still many controversies over its precise meaning, scope and application. The thesis considers the two aspects of selfdetermination: external self-determination and internal self-determination. The external aspect implies the right of people to form a new, sovereign and independent state, whereas the internal aspect implies the right of people to participate in the political framework of an existing state. The thesis also assesses the state of the academic literature over the right of peoples to self-determination, with a view to determining whether the right can be used by a group of people whose internal self-determination has been denied to effect secession from the state. It advocates that, outside the colonial context, the right of self-determination does not equal to a "right to secession and independence". The thesis argues, however, that in exceptional circumstances such as gross violations of human rights and the denial of internal self-determination, people should be endowed with a right to secession in the manifestation of a right to unilateral secession as a remedy of such injustices. The thesis further turns to the mechanisms for the protection of the peoples' right to self-determination, the problems and challenges in Africa. The challenges do not only include the legality of the use of force by rebel groups and national liberation movements in seeking to attain self-determination, but also the right of other states to assist them in their struggles. The work probes the nature of international law and critically assesses whether the persistent denial of demands for self-determination led to calls for drastic remedies, including the use of armed force. Before this theory is critically assessed, the thesis defines the differences between national liberation movements and rebel groups. It argues that as far as self-determination struggles are concerned, there must be representative organisations acting on behalf of people whose right of self-determination has been denied. In the light of these contentions, the study examines the general ban on the use of force as laid down by the UN Charter, and finds that the Charter does not expressly refer to self-determination as a situation where people may resort to the use of force for the attainment of such a right. It then turns to the history of and circumstance surrounding the use of force, examines the jus ad bellum regarding "liberation struggles", and concludes that the use of force by national liberation movements against colonial and racist regimes has strong theoretical foundations and support in state practice. Outside of the colonial and apartheid contexts, however, the argument that rebels acting on behalf of oppressed peoples may legitimately use force in pursuit of selfdetermination thus remains ambiguous. In that context, this thesis examines the practice relating to the use of force by rebel groups and the laws of war provisions that apply in civil wars, and concludes that none of them proves that the international community of states accepts rebels' right to use force as a legal entitlement. Finally, based on the lessons learned from and lacunae identified in all norms relating to the enforcement mechanisms of the right of self-determination, this study concludes with a set of suggestions and recommendations. / LLD (Law), North-West University, Potchefstroom Campus, 2015

The South African legal system is dualistic in nature with the one part consisting of the Western common law and the other consisting of African customary law. Although these two legal systems enjoy equal recognition, they regularly come into conflict with each other due to their divergent value systems. It is especially within the context of the South African criminal law that this conflict becomes apparent, because an accused's conduct can be viewed as lawful in terms of African customary law, but unlawful in terms of the South African common law. In such cases the accused may attempt to raise a cultural defence by putting forth evidence of his cultural background or values to convince the court that his prima facie unlawful conduct is actually lawful and that he should escape criminal liability. Alternatively, an accused may put forth evidence of his cultural background or values in an attempt to receive a lighter sentence. The question which therefore arises is whether a so-called "cultural defence" exists in the South African criminal law, and if so, what the influence of such a defence on the South African criminal law is. The conflict between African Customary law and the South African common law in the context of the criminal law arises due to the fact that the indigenous belief in witchcraft, (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the phenomenon of "necklacing" and the custom of ukuthwala can result in the commission of various common law crimes. In the case of witch-killings, the perpetrators can be charged with the common law crimes of murder or, if the victim survives, attempted murder, common assault or assault with intent to do grievous bodily harm. Similarly, necklacing, as a method used for killing witches, can also result in the commission of these common law crimes. What is more, the perpetrators of witch-killings can also be charged with the statutory crimes of accusing someone of witchcraft, pointing the victim out as being a witch or wizard or injuring a person based on information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the common law crimes of murder or, if the victim survives, common assault or assault with intent to do grievous bodily harm. The perpetrators of mutimurders can also face charges of murder or attempted murder, if the victim survives. The indigenous custom of ukuthwala can result in the commission of common law crimes such as abduction, kidnapping and common assault, as well as the statutory crime of rape. A perusal of South African case law dealing with the indigenous beliefs and customs above reveals that the accused in such cases have indeed attempted to put forth evidence of their indigenous beliefs or customs to persuade the criminal courts that they should escape criminal liability for a particular crime. In fact, these arguments were raised within the context of the existing common law defences such as private defence, necessity, involuntary conduct and a lack of criminal capacity. However, the South African criminal courts have up till now in general been unwilling to accept arguments of indigenous beliefs and customs to serve as a defence, either alone or within the context of the existing defences above, for the commission of a common law or statutory crime. They have, however, been more willing to accept evidence of an accused's indigenous belief or custom to serve as a mitigating factor during sentencing. The extent to which an accused's cultural background will serve as a mitigating factor will, of course, depend on the facts and circumstances of each case. As a result an accused who is charged with the commission of a culturally motivated crime has no guarantee that his cultural background and values will in fact be considered as a mitigating factor during his criminal trial. It is thus ultimately concluded that a so-called "cultural defence" does not exist in the South African Criminal law. The indigenous beliefs and customs above not only result in the commission of common law or statutory crimes, but also in the infringement of various fundamental human rights in the Constitution. Witch-killings result in the infringement of the constitutional right to life and the right to freedom and security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in the Constitution. Similarly, muti-murders and necklacing also result in the infringement of the right to life and the right to freedom and security of the person entrenched in the Constitution. The custom of ukuthwala results in the infringement of the right to equality, the right to freedom and security of the person, the right to live in an environment that is not harmful to health or well-being, the right not to be subjected to slavery, servitude or forced labour, the right to basic education and other constitutional safeguards aimed at protecting children. In light of the constitutional right to freedom of culture and the right to freely participate in a cultural life of one's choosing the question can be asked whether the time has come to formally recognise a cultural defence in the South African criminal law. In this study it is argued that these constitutional rights do not warrant the formal recognition of a cultural defence. Instead, it is recommended that the conflict between African customary law and the South African common law can be resolved by bringing indigenous beliefs and customs in line with the values that underpin the Constitution as the supreme law of South Africa. Of course, this does not mean that the courts should ignore cultural considerations during a criminal trial if and when they arise. In fact, as pointed out in this study, the courts have a constitutional duty to apply African customary law when that law is applicable. It goes without saying that, when an accused attempts to escape criminal liability for his unlawful conduct by raising arguments of his cultural background, African customary law will be applicable and must be considered by the court. This in turn raises the question as to how the criminal courts can ensure that they give enough consideration to the possibility that an accused's criminal conduct was culturally motivated so as to comply with their constitutional mandate referred to above. Although it would be nearly impossible to formulate a perfect or flawless approach according to which a judicial officer can adjudicate criminal matters involving culturally motivated crimes, the author suggests the following practical approach which may provide some guidance to judicial officers in dealing with cases involving culturally motivated crimes: • Step 1: Consider whether the commission of the crime was culturally motivated or not. If it seems as though the accused did not commit a culturally motivated crime, the trial can continue on that basis. If, however, it is evident that the accused indeed committed a culturally motivated crime, step 2 follows. • Step 2: Once it has been determined that the commission of the crime was culturally motivated, the next step is to determine which indigenous belief or custom led to the commission of the crime. Once the relevant indigenous belief or custom has been identified, step 3 follows. • Step 3: When it is clear which indigenous belief or custom led to the accused's commission of the crime, the next step is to determine whether arguments pertaining to that particular indigenous belief or custom may be raised within the context of the existing defences in the South African Criminal law in order to exclude the accused's criminal liability. If an accused relies on one of the existing defences in the South African criminal law, he will have to lay a proper evidential foundation for his defence before the court. In assessing the evidence put forth by the accused, the judicial officer must consider the judgment and reasoning in previous cases dealing with the particular indigenous belief or custom. A judicial officer must also consider the values underpinning the Constitution when conducting such an assessment. If a judicial officer upholds an accused's defence, the accused is acquitted. However, if the judicial officer rejects an accused's defence, the accused must be convicted and step 4 follows. • Step 4: Once an accused has been convicted, a court should consider whether arguments of his cultural background can serve as an extenuating circumstance, mitigating the punishment to be imposed on him. However, the practical approach above merely serves as a suggestion to judicial officers in dealing with culturally motivated crimes and ultimately it will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two legal systems. The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014

Self-determination is a peoples' right to freely determine their political, economic and cultural destiny without external interference. However, the cultivation of a culture of respect for self-determination remains the greatest challenge to post-colonial Africa. Dictatorships and other oppressive regimes very substantially affected Africa's efforts to develop a culture of constitutionalism and respect for the right of peoples to selfdetermination. Most African countries typify the failed effort of trying to establish an enduring democracy and respect for the right of peoples to take part in the government. After five decades of transition from colonialism to constitutional democracy, most African peoples are still under the yoke of governments they consider undesirable or oppressive. This work primarily sets out to investigate if the denial of the right of peoples to self-determination justifies the use of force to secure such a right. Since independence, Africa has experienced armed rebel groups seeking either to effect radical transformation of the whole state or to separate from the state to which they belong in order to create a new state. In the main, this study explores the extent to which rebel groups acting on behalf of peoples are or are not allowed to use force for the attainment of self-determination. The thesis begins with an historical development of the right to self-determination in international law. It initially examines how self-determination has developed from a political principle to a legal right. Despite the fact that self-determination is one of the core principles of the UN Charter, there are still many controversies over its precise meaning, scope and application. The thesis considers the two aspects of selfdetermination: external self-determination and internal self-determination. The external aspect implies the right of people to form a new, sovereign and independent state, whereas the internal aspect implies the right of people to participate in the political framework of an existing state. The thesis also assesses the state of the academic literature over the right of peoples to self-determination, with a view to determining whether the right can be used by a group of people whose internal self-determination has been denied to effect secession from the state. It advocates that, outside the colonial context, the right of self-determination does not equal to a "right to secession and independence". The thesis argues, however, that in exceptional circumstances such as gross violations of human rights and the denial of internal self-determination, people should be endowed with a right to secession in the manifestation of a right to unilateral secession as a remedy of such injustices. The thesis further turns to the mechanisms for the protection of the peoples' right to self-determination, the problems and challenges in Africa. The challenges do not only include the legality of the use of force by rebel groups and national liberation movements in seeking to attain self-determination, but also the right of other states to assist them in their struggles. The work probes the nature of international law and critically assesses whether the persistent denial of demands for self-determination led to calls for drastic remedies, including the use of armed force. Before this theory is critically assessed, the thesis defines the differences between national liberation movements and rebel groups. It argues that as far as self-determination struggles are concerned, there must be representative organisations acting on behalf of people whose right of self-determination has been denied. In the light of these contentions, the study examines the general ban on the use of force as laid down by the UN Charter, and finds that the Charter does not expressly refer to self-determination as a situation where people may resort to the use of force for the attainment of such a right. It then turns to the history of and circumstance surrounding the use of force, examines the jus ad bellum regarding "liberation struggles", and concludes that the use of force by national liberation movements against colonial and racist regimes has strong theoretical foundations and support in state practice. Outside of the colonial and apartheid contexts, however, the argument that rebels acting on behalf of oppressed peoples may legitimately use force in pursuit of selfdetermination thus remains ambiguous. In that context, this thesis examines the practice relating to the use of force by rebel groups and the laws of war provisions that apply in civil wars, and concludes that none of them proves that the international community of states accepts rebels' right to use force as a legal entitlement. Finally, based on the lessons learned from and lacunae identified in all norms relating to the enforcement mechanisms of the right of self-determination, this study concludes with a set of suggestions and recommendations. / LLD (Law), North-West University, Potchefstroom Campus, 2015

This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.