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The Global ETD Search service is a free service for researchers
to find electronic theses and dissertations. This service is
provided by the
Networked Digital Library of Theses and Dissertations.
Our metadata is collected from universities around the world. If you manage a university/consortium/country archive and want to be added, details can be found on the NDLTD website.
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Showing 41 to 49 of 49 (0.013 seconds)| 41 |
Die rol van diskresie by die toelaatbaarheid van getuienis wat in stryd met die grondwet verkry isNel, F. (Francisca) 11 1900 (has links)
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)
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| 42 |
The law giveth and the law taketh away : Marriages out of community of property excluding accrual post 1984/88Welsh, Shirley Anne Vera 11 1900 (has links)
Because women are predominantly responsible for childcare, men are the primary income
earners. Having acquired the marital assets, on divorce the husband would retain them in a
marriage out of community of property. The wife would be left deskilled, financially
dependent, with little likelihood of receiving spousal maintenance and with no marital assets.
In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment
Act introduced a judicial discretion to equitably redistribute marital assets in certain
marriages out of community. This dissertation argues that the bases for the limitation of the
judicial discretion to women married before a certain date are unsound and that the limitation
arguably violates the equality clause of the Constitution. / Law / LL.M.
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| 43 |
The admissibility and evaluation of scientific evidence in courtFaurie, Annari 11 1900 (has links)
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)
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| 44 |
Die rol van diskresie by die toelaatbaarheid van getuienis wat in stryd met die grondwet verkry isNel, F. (Francisca) 11 1900 (has links)
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 and Procedural Law / LL.M. (Law)
|
| 45 |
The law giveth and the law taketh away : Marriages out of community of property excluding accrual post 1984/88Welsh, Shirley Anne Vera 11 1900 (has links)
Because women are predominantly responsible for childcare, men are the primary income
earners. Having acquired the marital assets, on divorce the husband would retain them in a
marriage out of community of property. The wife would be left deskilled, financially
dependent, with little likelihood of receiving spousal maintenance and with no marital assets.
In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment
Act introduced a judicial discretion to equitably redistribute marital assets in certain
marriages out of community. This dissertation argues that the bases for the limitation of the
judicial discretion to women married before a certain date are unsound and that the limitation
arguably violates the equality clause of the Constitution. / Law / LL.M.
|
| 46 |
The admissibility and evaluation of scientific evidence in courtFaurie, Annari 11 1900 (has links)
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 and Procedural Law / LL.M. (Law)
|
| 47 |
Zločin a trest u Cesare Beccarii: Analýza osvícenské trestněprávní reformy / Crime and Punishment in the Eyes of Cesare Beccaria: An Analysis of an Enlightenment Penal Law ReformBojar, Tomáš January 2016 (has links)
Crime and Punishment in the Eyes of Cesare Beccaria An Analysis of an Enlightenment Penal Law Reform The Ph.D. dissertation is centred around a relatively concise, but extremely influential book: Cesare Beccaria's treatise On Crimes and Punishments (Dei delitti e delle pene). This work, first published in 1764, sums up in a clear, yet intellectually penetrating way all the main Enlightenment principles of a complex penal law reform. In its time, the book was not only of great philosophical importance and it not only changed the way western societies perceived crime and punishment, but it also served as a concrete guideline for various penal law reformers. It is therefore by no means an overstatement to say that it caused a true paradigm shift in both legal and moral philosophy. The main aim of the thesis is to give a legal-philosophical account of Beccaria's thoughts on crime and punishment, to examine their historical as well as moral background and show the actual impact they had on the legislation of many different, mainly European states. The first chapters of the dissertation are focused on Beccaria's life, his intellectual background and his formative influences (particularly the French, English and Scottish Enlightenment, the social contract theory, utilitarianism, Montesquieu's thoughts on penal...
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| 48 |
Zločin a trest u Cesare Beccarii: Analýza osvícenské trestněprávní reformy / Crime and Punishment in the Eyes of Cesare Beccaria: An Analysis of an Enlightenment Penal Law ReformBojar, Tomáš January 2016 (has links)
Crime and Punishment in the Eyes of Cesare Beccaria An Analysis of an Enlightenment Penal Law Reform The Ph.D. dissertation is centred around a relatively concise, but extremely influential book: Cesare Beccaria's treatise On Crimes and Punishments (Dei delitti e delle pene). This work, first published in 1764, sums up in a clear, yet intellectually penetrating way all the main Enlightenment principles of a complex penal law reform. In its time, the book was not only of great philosophical importance and it not only changed the way western societies perceived crime and punishment, but it also served as a concrete guideline for various penal law reformers. It is therefore by no means an overstatement to say that it caused a true paradigm shift in both legal and moral philosophy. The main aim of the thesis is to give a legal-philosophical account of Beccaria's thoughts on crime and punishment, to examine their historical as well as moral background and show the actual impact they had on the legislation of many different, mainly European states. The first chapters of the dissertation are focused on Beccaria's life, his intellectual background and his formative influences (particularly the French, English and Scottish Enlightenment, the social contract theory, utilitarianism, Montesquieu's thoughts on penal...
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| 49 |
A Pragmatic Standard of Legal ValidityTyler, John 2012 May 1900 (has links)
American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law.
These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism.
In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method.
This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior.
The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent.
The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will.
Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil.
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