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Inconsistency in judicial decisions : the right to life in perspectiveMoabelo, Kgorohlo Micro 02 1900 (has links)
The dissertation critically examines and compares the decisions of the
Constitutional Court and the High Courts in cases dealing with the right to life, as
contained in section 11 of the Constitution of South Africa Act 108 of 1996. The
dissertation analysis the issues of adjudication and the concept of justice in
perspective. The main question is as follows: Are the Constitutional Court
decisions objective, based on the interpretation of the constitutional text, or do they
rather reflect the individual judge(s) personal perspective(s) or preference(s).
The purpose of this dissertation is to undertake a comparative study and analysis
of the Constitutional Court decisions on the right to life, same aspect from different
perspective, and show that the right to life is not given proper effect to on account
of the subjective approach to its interpretation undertaken by the judges.
It examines and scrutinises the Constitutional Court’s adjudication process. It found
that the law is indeterminable, because the court’s decisions are not based on the
interpretation of the law, but on the individual judges’ background and personal
preferences. This is so because the court uses the majority rule principle in its
decisions: The perception of the majority of the judges becomes a decision of the
court. It is argued that when taking a decision a judge does not apply the law but
instead uses the law to justify his predetermined decision on the matter. The
conclusion supports the critical legal scholars’ theory relating to the indeterminacy
of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal & Procedural Law / LLM
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Inconsistency in judicial decisions : the right to life in perspectiveMoabelo, Kgorohlo Micro 02 1900 (has links)
The dissertation critically examines and compares the decisions of the
Constitutional Court and the High Courts in cases dealing with the right to life, as
contained in section 11 of the Constitution of South Africa Act 108 of 1996. The
dissertation analysis the issues of adjudication and the concept of justice in
perspective. The main question is as follows: Are the Constitutional Court
decisions objective, based on the interpretation of the constitutional text, or do they
rather reflect the individual judge(s) personal perspective(s) or preference(s).
The purpose of this dissertation is to undertake a comparative study and analysis
of the Constitutional Court decisions on the right to life, same aspect from different
perspective, and show that the right to life is not given proper effect to on account
of the subjective approach to its interpretation undertaken by the judges.
It examines and scrutinises the Constitutional Court’s adjudication process. It found
that the law is indeterminable, because the court’s decisions are not based on the
interpretation of the law, but on the individual judges’ background and personal
preferences. This is so because the court uses the majority rule principle in its
decisions: The perception of the majority of the judges becomes a decision of the
court. It is argued that when taking a decision a judge does not apply the law but
instead uses the law to justify his predetermined decision on the matter. The
conclusion supports the critical legal scholars’ theory relating to the indeterminacy
of the law. It tests the objectivity of the judges using their own previous decisions. / Criminal and Procedural Law / LL. M.
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The applicability of procedural fairness to actions by members of the South African National Defence ForceMalatsi, Nanoga Claudia 01 1900 (has links)
The dissertation examines the applicability of procedural fairness to actions by members of the South African National Defence Forces (SANDF). The research focuses on and uses the South African Defence Force Union v The Minister of South African National Defence Force (SANDU 2010 judgment) to illustrate how procedural fairness should find application in the SANDF, given the sui generis nature of the defence forces. This judgment presented an opportunity to investigate whether the legislative framework that is available in the SANDF is adequate to protect the right to procedural fairness of the members of the SANDF encapsulated in section 33 of the Constitution, 1996.
The dissertation examines the relevant sections of the Defence Act, Military Discipline Supplementary Measures Act, Labour Relations Act (LRA), and the Promotion of Administrative Justice Act (PAJA) read with sections 23 and 33 of the Constitution to determine whether there is a gap that exists in so far as the protection of the right to procedural fairness of members of the defence forces is concerned. It also examines the Military Discipline Code and the rules and regulations of the Defence Forces.
The analysis of the SANDU 2010 judgment demonstrates that PAJA could find application in dismissal or employment related disputes within the SANDF. The scenario that is evidenced from the analysis of the defence force legislative framework is that the legislative framework that is available within the SANDF is inadequate to protect and deal with disputes which arise from allegations of infringement of the right to procedural fairness. This scenario is compounded by the fact that the LRA which is the empowering legislation that was promulgated to give effect to the right to section 23 of the Constitution and to deal with dismissal and employment related disputes, does not apply to members of the SANDF. / Public, Constitutional, and International Law / LL. M.
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A critical evaluation of the independence of the Office of the Chief Justice and its role in promoting judicial transformation in South AfricaPhatshwane, Rebaone Jeremia 07 1900 (has links)
The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. / Public, Constitutional and International Law / LL. M. (Human Rights Law)
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Discourses of silence : judicial responses to industrial action as an archaeolgy of juridificationMischke, Carl 08 1900 (has links)
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.
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Tsenguluso ya mbambedzo ya thandululo ya thaidzo dza mafhungo a ṱhalano khoroni dza musanda na khothe dza muvhuso tshiṱirikini tsha vhembe, vunḓuni ḽa LimpopoNtshauba, Siwethu Thomas 12 1900 (has links)
In Venda with English abstract / Hei thyisisi i vhambedza thandululo ya thaidzo dza mafhungo a ṱhalano khoroni dza
musanda na khothe dza muvhuso. Saizwi Ndayotewa ya Riphabuḽiki ya Afrika
Tshipembe, mulayo 108 wa 1996, i tshi ṋea muṅwe na muṅwe pfanelo dza u shumisa
luambo lune a lu takalela, nyambo dzoṱhe dza tshiofisi dzi tea u shumiswa u lingana kha
thandululo ya thaidzo dza ṱhalano khoroni na khothe. Hei thyisisi i sumbedza nyambo
dza English na Afrikaans dzi dzone dzi re na mutsindo musi hu tshi itwa thandulululo ya
thaidzo dza ṱhalano ngeno luambo lwa Tshivenḓa na lwa vhaholefhali vha u pfa lu sa
pfali. Nga nnḓa ha u ḓiphina nga mbofholowo ya u shumisa Tshivenḓa sa luambo lwa
tshiofisi kha u amba, lu shumiswa zwenezwo fhedzi huna muṱalutshedzi wa khothe.
Ngauralo, hei thyisisi i khou ita khuwelelo ya uri tshifhinga tsho swika tsha uri muvhuso
u ṋee luambo lwa Tshivenḓa vhuiimo vhu eḓanaho na nyambo dza English na
Afrikaans na uri ulu luambo lu shumiswevho kha thandululo ya thaidzo dza mafhungo a
ṱhalano khothe dza muvhuso. / This thesis compares the conflict resolution in divorce discourse between traditional and
government courts. It argues that since the Constitution of the Republic of South Africa
Act no 108 of 1996 has given everyone the right to use the language of his or her
choice, all official languages must be used equitably in conflict resolutions in divorce
discourse in both traditional and government courts. Most of the Vhavenḓa, especially
the elderly, cannot speak more than one official language and this is relevant in conflict
resolution. This thesis contends that conflict resolution in divorce discourse is mainly
dominated by English and Afrikaans while Tshivenḓa as well as sign language is not
used. Instead of enjoying the freedom of utilizing Tshivenḓa as a spoken official
language as used by the court interpreter. Therefore, this thesis argues that time has
come that government courts accord equal status to all official languages and that
Tshivenḓa language should be utilized as English and Afrikaans in conflict resolution in
divorce discourse. / African languages / D. Litt. et Phil. (African Languages)
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