This thesis compares the arrest-of-ship proceedings of the Republic of South Africa and the Federal Republic of Germany. In German law the more than a century old provisions of the Code of Civil Procedure (as amended) are applicable, in South Africa the major statute is the Admiralty Jurisdiction Regulation Act of 1 November 1983. South Africa has special Admiralty Courts having jurisdiction in arrest matters. When issuing the arrest in Germany, jurisdiction is vested in the court dealing with the principal matters, as well as in the Magistrate Court (Amtsgericht) in which district the property (such as the ship which is to be arrested) is located. Both German and South African law provide that a creditor who wishes to arrest a ship must have a "claim for an arrest." In South African law such a claim is called a "maritime claim." South African admiralty law contains some special and even unique provisions such as those regarding the arrest of an "associated ship." These provisions attempt to defeat the strategy against sister-ship-arrests and enable the courts to arrest ships owned by the person who was the owner of the ship concerned at the time the maritime claim arose. The court can also arrest a ship owned by a company in which the shares were controlled or owned by a person who then controlled or owned the shares in the company which owned the ship concerned. Ships will be deemed to be owned by the same Persons if all the shares in the ship are owned by the same persons. A person furthermore will be deemed to control a company if he has the power to control the company directly or indirectly. Deviating from common law principles which require the physical presence of the property to be arrested, the South African courts can order anticipated arrests of a ship not yet within the area of jurisdiction of the court at the time of application. Such an order may be brought into effect when the property (in this case, the ship) comes within the area of jurisdiction of the court. The same principle is applicable in German law and does not contravene para 482 HGB because this provision only prohibits placing a ship under distraint and not the order for an arrest. In German law an action in personam is only directed against a person whereas in south African law a res, eg a ship or her bunkers, is the object of the admiralty action in personam. The Admiralty Jurisdiction Regulation Act of 1983 attempts at uniformity with international law as it is based on several existing laws and international conventions, for example the International Convention for the Unification of Certain Rules Relating to Arrest of Seagoing Ships of 1952. Unlike Germany, South Africa is not, however, a signatory to the International Arrest Convention of 1952. When applying German law, it has to be noted that Germany has ratified the Convention on Jurisdiction and the Enforcement of Judgments in CiviI and Commercial Matters of 1968 (the EEC-Convention) - this is particularly so when trying to enforce the arrest of ships. Regulations Concerning the limitation of liability in South Africa can be found in ss 261 to 263 of the Merchant Shipping Act of 1951. In German law limitation of liability is codified in paras 486 to 487e of the Commercial Code (HGB) with reference to the International Convention on Limitation of Liability for Maritime Claims of 1976 (the 1976 Convention). This thesis shows that in certain fields South African and German provisions do not deviate or are at least substantially similar. This fact makes the application of both laws easier for litigants and lawyers, either for South Africans in Germany or Germans in South Africa. / Thesis (LL.M.)-University of Natal, Durban, 1988.

Thesis (LLM) North-West University, Mafikeng Campus, 2005

No abstract available. / Thesis (M.Com.)-University of Durban-Westville, 2002.

This thesis deals with a very important issue in government, i.e. the process of procuring goods and services. The state is the biggest consumer of goods and services in South Africa and with the increasing privatisation of government services, the ambit of procurement is expanding.<br /> <br /> Government procurement is afforded constitutional status in South Africa. Section 217 of the Constitution provides that the state must contract for goods or services in a manner which is fair, equitable, transparent, competitive and cost-effective. This does not prevent the state from using procurement as a policy instrument, i.e. to, for example, address past discriminatory policies and practices. Legislation must furthermore be enacted to make provision for the use of procurement as a policy tool.<br /> <br /> A number of statutes have been enacted to reflect the constitutional status of government procurement in South Africa. In addition to these statutes, government procurement decisions and procedures are regulated by the common law, in particular, the law of contract and the law of delict. The general rules of constitutional and administrative law also apply to government procurement.<br /> This thesis evaluates the way in which the legal regime in South Africa collectively gives effect to section 217 of the Constitution. First, the constitutional standard against which the elements of the legal regime can be measured is set out. In doing so, meaning is given to the different principles in section 217 (fairness, equity, transparency, competitiveness and cost-effectiveness) and attention is given to the legal nature of the principles and the relationship that exists between the different principles. The focus then shifts to how the principles are given effect to in legislation / how the courts give meaning to the different principles / whether there is compliance with the principles throughout the procurement process, i.e. from the time that the decision is made to procure goods or services until the conclusion of a contract and completion of contractual performances / and whether adequate provision is made for the effective enforcement of the principles in practice.<br /> <br /> It is argued that aside from a few shortcomings, the legal regime in South Africa generally gives adequate effect to section 217 of the Constitution. Not only has the procurement procedures and decisions of the state been constitutionalised, section 217 can be said to capture the most essential elements of a good procurement system. The principles of fairness, transparency and value for money, in particular, are generally regarded as the cornerstone of good procurement practices. The principles in section 217 will furthermore form part of South Africa&rsquo / s government procurement system for a very long period of time. The state will therefore always have to take serious account of the principles in section 217 and ensure compliance therewith.

Child participation and the right of children to be heard in matters that directly affect them, including in judicial and administrative matters, is a right that is entrenched in a number of international and regional instruments. This right is also entrenched in the South African Constitution that provides for children to be legally represented, at State expense, in civil proceedings affecting them and this includes divorce proceedings. However, this constitutional right is limited to those circumstances where a substantial injustice would otherwise result should such legal representation not be afforded. This thesis examined how the voices of children can be heard during divorce proceedings and makes recommendations as to when children involved in divorce proceedings should be granted legal representation at State expense.

Child participation and the right of children to be heard in matters that directly affect them, including in judicial and administrative matters, is a right that is entrenched in a number of international and regional instruments. This right is also entrenched in the South African Constitution that provides for children to be legally represented, at State expense, in civil proceedings affecting them and this includes divorce proceedings. However, this constitutional right is limited to those circumstances where a substantial injustice would otherwise result should such legal representation not be afforded. This thesis examined how the voices of children can be heard during divorce proceedings and makes recommendations as to when children involved in divorce proceedings should be granted legal representation at State expense.

The Public Service Commission (PSC) is an independent oversight body established in terms of chapter 10 of the Constitution, 1996. Although, its powers and functions were enacted in the Public Service Commission Act, 1997, this institution has been in existence since the early 1900’s. As an institution which was birthed during an era wrought with injustice, inequality upon a labour law framework which barely existed as the concept is understood today, the PSC played a leading role in the management of the public service. The influence of the Treasury, Governor-General and socio-political forces throughout the 1900’s negatively impacted the manner in which the PSC was effectively able to exercise its’ powers and functions. Subsequent thereto, the rise of staff associations and their concerted effort to be party to matters pertaining to the employment relationship, placed the PSC in a precarious situation which created the perception that the PSC was a “toothless organization”. Although the PSC has since transitioned significantly in that many of the functions it performed are now exercised by the Ministry of Public Service and Administration, today, this perception is still as real as it was in the 1970’s. The primary purpose of this treatise is to provide a historical background to present time, depicting the role undertaken by the PSC and whether the perception of being ineffective in the administration of the public service, remains. The researcher will provide a distinction of the nature of grievances dealt with by the PSC and other alternate dispute resolution bodies, with specific attention being drawn to the methodologies applied in the execution of its mandate relating to labour relations and personnel practices, and the overall bearing it this has on the effective administration of the public service. In the conclusion it is submitted that the powers and functions of the PSC may extend to directions, advice and recommendations (unenforceable), however in comparison to other dispute resolution bodies, these powers and functions are centred around the promotion of constitutionally enshrined values and principles. PSC prides itself in the fruits of its labour as it is able to make a far greater impact by investigating root causes of grievances and redressing systemic issues, emanating from yesteryear to date. It is therefore submitted that as a result of different methodologies applied in comparison to other dispute resolution bodies, the highly administrative processes embarked proves far more thorough and effective and as a result cannot be compared or perceived to be ineffective. Lastly, it is submitted that the co-operative rather than adversarial approach embarked upon by the PSC is befitting for a young democratic country where impact-driven bears far reaching results, extending over the public service administration at large. To this end, the researcher refutes the misconception that the PSC is a toothless, ineffective organization which no longer plays a meaningful role within the Public Service Administration.

No description available.

This study analyzes the rule of the law of treaties permitting the provisional application of treaties or parts thereof, which usually occurs between signature and ratification (article 25 of the 1969 Vienna Convention). Chapter 1 reviews the negotiating record of article 25. Chapter 2 examines the reasons for provisional application, which include the urgency of the treaty and preparation for a new international organization. Chapter 3 considers article 25 in detail, while chapter 4 explores provisional application under customary international law, including the origins of the custom. The constitutionality of provisional application and the municipal effect of provisionally applied treaties are examined in chapter 5, along with provisional application in South African law and treaty practice. Chapter 6 considers the special role of provisional application in the field of arms control instruments. The main conclusion reached is that the principle of pacta sunt servanda applies during the provisional period. / Jurisprudence / LL.M

The objective of this paper is to investigate the Rotterdam Rules, and to ascertain whether South Africa should accede to or ratify them. In order to accomplish this, South Africa's current maritime transport regime will be examined, and existing "problem areas" will be identified. This will be followed by a comparative analysis between the Rotterdam Rules and the Hague-Visby Rules, which South Africa applies as part of national law to regulate the carriage of goods by sea. As a new maritime Convention, the Rotterdam Rules have attracted widespread criticism and support, and whether such is justified will also be considered. Finally potential considerations South Africa should take into account in electing whether or not to accede or ratify the Rules have been assessed from a political, economic, social, technological, legal and environmental standpoint as at 31 December 2011