Since the incorporation of the separation of powers doctrine into the South African Constitution, the problem has arisen that, each of the three tiers of government, the Executive, the Judiciary and the Legislature, has sought to protect exclusive jurisdiction over matters that fall within what constitutes that tier's own realm of authority. The effects of this are especially apparent in the field of dispute resolution in administrative law. The administration is predominantly the province of the Executive, and to a lesser extent, the Legislature. Thus, the acceptability of judicial review in dispute resolution and generally, the intrusion by the Judiciary in matters of the administration is perennially questioned and challenged by both the Executive and the Legislature. In this context, the duty to exhaust internal remedies assumes a pivotal role. It offers a compromise, by prescribing qualified exclusion of judicial review as a first port of call for dispute resolution while simultaneously entrusting initial dispute resolution to the administration. Often, this approach yields tangible results, but from a constitutional and fundamental rights perspective, the duty to exhaust internal remedies is problematic. Its exclusion of judicial review goes against, not only the right of access to court in section 34 of the Constitution, but also the rule of law, to the extent that the rule of law allows for the challenging, in court, of illegal administrative action as soon as it is taken. This thesis analyses the constitutionality of the duty to exhaust internal remedies in section 7(2) of the Promotion of Administrative Justice Act by assessing the consistency of section 7(2) of the Promotion of Administrative Justice Act with the right of access to court in section 34 of the Constitution. The thesis initially examines the origins and historical development of the duty to exhaust internal remedies in the English law, and the subsequent adoption of the duty to exhaust internal remedies into the South African common law for the purpose of interpreting and comprehending the duty to exhaust internal remedies as it is appears in section 7(2) of the Promotion of Administrative Justice Act. Ultimately, the study focuses on and identifies the deficiencies in the current approach to the question of the constitutionality of section 7(2) of the Promotion of Administrative Justice Act, and offers suggestions on how the law might be developed.

Gestalt play therapy court assessment / Child victim / Sexual crime / Legal professionals / Assessment guideline / Intermediary / Text in Afrikaans / As a source of information the court needs to be convinced of the witness's credibility and the ability to recall and communicate the truth regarding the Incident. Mostly the court uses the expertise of an expert witness to assist it in making a decision regarding the way in which a child needs to testify in court. Experts in this field are challenged to align the legal requirements with those of their field of expertise. In this research the Gestalt therapeutic approach is used to design an assessment guideline to assist experts to assess the ability of child victims of sexual crimes to testify in court. The Gestalt therapeutic approach focuses on the present (here and now) and has the ability to obtain access to the information present in the child's life. In the proposed assessment guideline certain Gestalt play therapy methods are recommended to assist the expert to assessing the child victim of a sexual crime. / Play therapy / M.Diac. (Play therapy)

In this thesis, the common law crime of obstructing or defeating the course of justice as currently applied in South African law, is considered critically. The purpose of the study is to determine whether the ambit of the crime should be extended to target all conduct which undermines the proper administration of justice in South Africa. The interests protected by the crime are investigated, and those important constitutional values which underpin the crime, are identified. These values are: (i) constitutional supremacy (ii) the rule of law (iii) the doctrine of separation of powers, and (iv) the independence of the courts. In a post-constitutional era, the question raised is whether the crime as developed in the common law adequately protects these important democratic values. The historical background and development of the offence are discussed. This is followed by a comparative legal study which considers the existence and ambit of the offence in certain foreign jurisdictions. The foreign legal systems considered are England, Australia, Canada and the United States of America. The study reveals that the crime has been codified in most of these jurisdictions. Codification was driven by the need for legal certainty and compliance with constitutional imperatives. The study concludes that similar reform is necessary in South African criminal law. It is recommended that the common law offence of obstructing or defeating the course of justice be repealed and replaced with a comprehensive statutory offence which criminalises all manifestations of conduct which are intended to defeat or obstruct the proper administration of justice. The proposals are based upon the identified constitutional imperatives which underpin the crime. It is argued that the legislature is the proper institution to initiate reform in this regard. Detailed recommendations are made, which include draft legislation. / Law / LL.D.

This study investigates the interaction between freedom and limitation as applied to political expression and hate speech. The need for the limitation of hate speech, with its inherent risk of escalation into other serious crimes such as genocide, is established. The view of the South African courts is identified as pro-limitation but generally respectful of the right to freedom of expression. A lacuna in current constitutional law, common law and legislative remedies is evident and the various ways in which limitation can be effected are explored; the researcher finds for criminalisation as an effective measure to address this lacuna in hate speech regulation. The importance of complying with the international call for the criminalisation of hate speech is analysed. Insight is gained regarding what would be an effective model for criminalisation. Here lessons are taken from foreign comparatives that have successfully criminalised hate speech in the context of their cultural identity, history and social needs. Ultimately, a framework for effective hate speech criminalisation in South Africa is formulated. / Constitutional, International & Indigenous Law / LL.M

The history of the criminal justice system in South Africa, in the last decade is a history dominated by the desire for change and transformation. It will be remembered that we are talking of a system which, in the past, formed part of the State apparatus of a minority government which included racist elements and highly restrictive legal regime in dealing with communities, crime and criminals. The criminal justice system is constituted by four core departments, namely: the South African Police Services; Department of Justice, Correctional Services and Welfare. The argument is whether the volunteers from the community should be involved at all in the fight against crime or not. Some people feel that a system· of justice should be controlled by professionals, who are accountable for their decisions, namely: the Police, Justice, and Correctional Services. However, the research revealed that a system which excludes the community from participating, will render itself ineffective and open to abuse. This topic should be further researched within each department in the criminal justice system in order to explore possibilities of attracting volunteers in the transformation of their respective departments. / Penology / D.Litt. et Phil. (Penology)

Text in Afrikaans / Die penologiese perspektief rakende die ontwikkeling/ doel en funksionering van leke-assessore is die onderwerp van hierdie verhandeling. Leke-deelname in die regsplegingstelsel kan terug­ gevoer word na 1657. Deur die latere oorname van Engelse regsbeginsels1 word die juriestelsel in die Suid-Afrikaanse reg geinkorporeer. Na die afskaffing van die juriestelsel in 1969 berus die beantwoording van sowel feite- as regsvrae slegs by die voorsittende beampte. Hierdie situasie is as onaan­ vaarbaar beskou en grater leke-deelname word bepleit. Dit is egter eers in 1991 dat die aanwending van leke-assessore in die Suid-Afrikaanse regstelsel 'n realiteit word. Een van die voorvereistes vir die aanstel van assessore is dat die aanstelling dienstig vir die regspleging moet wees. Die vraag waarmee penoloe en juriste worstel, is of die aanwending van assessore tans wel bevorderlik vir gesonde regspleging is. Uit empiriese navorsing het dit geblyk nie die geval te wees nie. Derhalwe word 'n opleidingsprogram vir assessore voorgestel / The subject of perspective on tioning of lay justice. this dissertation is a penological the development/ purpose and tunc­ assessors in the administration of The use of lay assessors can be traced back as far as 1657. As a result of the adoption of the British law principles/ the jury system was incorporated in South African law. After the abolition of the jury in 1969/ the answering of factual and judicial questions resides in the presiding officer. This situation was unacceptable and lay participation was advocated. The use of lay assessors became a reality in 1991. The prerequisite for the appointment of an assessor is that it should be expedient for the administration of justice. But are the use of lay assessors beneficial at this stage? From the empirical research it is evident that it is not beneficial at all and therefore the researcher recommends a training programme for lay assessors. / Penology / M.A. (Penologie)

The abolition of corporal punishment in S v Williams and Others 1995 (3) SA 632 (CC) provided the state with the impetus to consider alternative sentencing options. Unsystematic efforts by the government to reform the juvenile justice system have failed abysmally. The government was forced to review its policies on juvenile sentencing. An examination of international trends reveals the imposition of stricter measures of punishment for serious and violent juvenile offenders. Community-based sentencing options are used mainly for first-time offenders. The focus has also shifted from punishment and retribution to prevention and treatment. It is advocated that serious and violent juvenile offenders be incarcerated in secure-care facilities and/or juvenile prisons and that community-based sentencing options be utilised for first-time offenders. The government should also design programmes that deal with situations that lead to crime and delinquency / Criminal & Procedural Law / LL.M. (Law)

The inmates who are serving life imprisonment are provided with the treatment programmes throughout their incarceration period until they are released from custody. In addition, they are afforded with their primary and secondary needs in prisons. Before the lifers are released from prison, pre-release programmes are presented to them in order to facilitate their reintegration process into the community. After the lifers are released from prisons on parole, the community corrections offices further facilitate their reintegration process into the community. / Penology / D. Litt. et Phil. (Penology)

No abstract or keywords allocated in thesis / Department of Penology / D.Litt. et Phil.

Thesis (LLM (Public Law))--University of Stellenbosch, 2007. / In order to test whether South African public service fulfills democratic aims and objectives, this study establishes the limits to and extent of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) in promoting the right to administrative justice as a human right (the RAJAH) and thereby transforming public service delivery. To achieve above aim the background to the entrenched right to administrative justice is analysed through a study of principles underlying administrative justice. Both South African common law and Constitutional systems are analysed against the principles underlying administrative justice. Batho Pele principles contained in the White Paper on the Transformation of the Public Service (WPTPS) are also analysed to find out how the South African Public Administration interprets its constitutional duties and to establish the relevance of these principles to administrative justice principles ensconced in the PAJA. The PAJA is then analysed in order to measure the extent to which it affirms the transformation principles ensconced in the Constitution and coinciding with Batho Pele principles. As the public service is a reflection of democracy in action, the public expects it to be professional, representative and proficient. If it does not fulfil these expectations, this may be interpreted as a fundamental failure of democracy. South African democracy in particular is development oriented because it is based on the Constitution that entrenches among others the right to administrative justice. The right to administrative justice as a development tool urges the public sector to recognise and apply constitutionally recognised procedures and processes in every delivery so that the social status of citizens may be enhanced. Such steps, if effectively followed, signify that the public sector has transformed from bad governance practices of the pre constitutional era where there was no requirement for the observance of individual rights in public service delivery. Failures to the adoption of good governance principles by the public sector show the opposite of the expected standards and signify that the public sector is not yet transformed. In the light of the problems caused by the lack of protection of human rights from abuse by the executive under the common law system of parliamentary supremacy, the constitutional era was expected to have changed the position of South African administrative law drastically through its adoption of the principles underlying administrative justice. To develop insight into the extent of the transformation towards administrative justice that is expected to have occurred in South Africa since the advent of constitutionalism the implementation of the PAJA is evaluated through an examination of a selection of cases that deals with public administration decisions in the area of social assistance as a context in which members of the public are most dependent on effective state administration. As the scope of the study limits the number of cases that can be examined, only the most informative cases on social assistance that relates to the KwaZulu-Natal and the Eastern Cape provinces are analysed. The research finds that public service is not yet transformed and identifies the causal factors. It recommends steps to be followed so that the expected culture from the public sector is attained.