Complementarity, the organizing principle of the International Criminal Court (ICC), is a largely untested concept in terms of its ability to instigate State compliance with the Rome Statute of the International Criminal Court. The ICC made its debut at a time when States were routinely accused of non-compliance with international law, particularly international criminal law. Due to perennial concerns over the protection of State sovereignty, an ingenious system of allocation of competencies between States and the ICC was evolved. This is embodied by the principle of complementarity. At the heart of complementarity is an arrangement by which States Parties to the Rome Statute of the ICC are regarded as the prime fora for the prosecution of crimes of grave concern to the international community. In the event of inaction, however, the ICC is mandated to wrest specific cases from the jurisdiction of national courts and try them. In effect, a carrot-and-stick mechanism has been built into the Rome Statute to induce States to comply with the Statute. This thesis examines the principle of complementarity from a theoretical perspective, bearing in mind contemporary international law structures and institutions. A better understanding of the theoretical assumptions of complementarity, it is suggested, will foster a more effective application of the tenets of the Rome Statute within the municipal system. The thesis argues that complementarity is a catalyst for implementation of the Rome Statute only to the extent to which it alters or re-defines well established and encumbering procedures and norms within the municipal system. In this regard, although South Africa’s status of constitutional democracy may be reason to expect that the obligations imposed by the Rome Statute will be observed, that very fact may increase the inclination to preserve the “baseline of conduct” rather than be swayed by the Rome Statute. An illustrative excursion into South African rules and norms is undertaken, after which the argument is advanced that not much change has been effected to the South African legal landscape through implementation of the Rome Statute. The sole exception to this is the issue of prosecutorial discretion. On this, the South African legislature has uniquely crafted a mechanism for ensuring accountability, presumably with a view to ensuring that South Africa is always able to prosecute the crimes concerned. However, the thesis cautions against complacency, arguing that the tension between national law and international obligations may yet play itself out, owing to insufficient attention to the role of national courts in giving effect to the Rome Statute. The act of implementation may be a response to stimuli such as the perceived need to avoid civil liability for international crimes, or the general inertia of implementing human rights instruments. Therefore, the carrot-and-stick mechanism may be lacking in the compulsive qualities it is presumed to have. Through an exploratory survey of South African law, the thesis illustrates that prosecutorial accountability is the major factor in determining whether a State has fully complied with is obligations under the Rome Statute. However, it also points out that the way courts of law apply the new norms in municipal systems in the future will be crucial.

Over the years, human trafficking has become one of the fastest growing crimes in the world. According to a report of the United Nations Office on Drugs and Crime, Women and Children account for 75 percent of trafficked victims. Between 2007 and 2010, children accounted for 20 percent of the trafficked victims which is approximately 1343 children per year. Sadly, these statistics continue to rise annually. It is from this premise that no one can doubt the rationale behind the 2015 Immigration Regulations that affect children travelling in and out of South Africa. However, in terms of section 28 (2) of the Constitution of the Republic of South Africa, it is a prerequisite that in any matter affecting a child, the best interest of the child be of paramount importance. This mini dissertation seeks to establish whether these Immigration Regulations which initially came into effect in May 2014, are in the best interest of child travellers. This has been done by looking at the old system which regulated the movement of children; its loopholes and shortcomings, thereby establishing whether Regulation 6 (12) is a panacea or in fact the hallmark of a series of problems that have a detrimental effect on the well-being as well as the rights of the child. The research methodology is mainly based on a study of existing literature. This largely includes internet sources, national legislation, regional and international instruments as well as case law. The South African Immigration Act 2002 is the primary reference with regards to regulatory information. However, lessons are drawn from legislation from other jurisdictions, notably Zimbabwean Immigration laws as well as those of Namibia. This is because South Africa shares a border with Zimbabwe and it also has a historical connection with Namibia and has good relations with both States. The mini dissertation analyses the impact of the 2015 Immigration Regulations not only on children but on other sectors as well. Lastly, the latter makes recommendations on how to improve these Regulations without affecting the best interest of child travellers.

This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. / KMBT_363 / Adobe Acrobat 9.53 Paper Capture Plug-in

In South Africa, it is evident that women are uniformed of their essential human rights, especially their inheritance and succession rights, including protection of such rights. Human rights are international norms that protect individuals everywhere from the states’ political, legal and social abuse. Human rights are entitlements which human beings have in order to enhance their human condition. They are the fundamental entitlements or minimum standards to be met for individual so that they live with dignity. This study focused on discrimination of women under customary law in South Africa with reference to inheritance and succession. The study validated the findings of other researchers on the impact of cultural practices on women’s rights to inheritance and succession. In addition the findings revealed that efforts t eliminate traditional practices, should foremost come from men and from communities that hold such destructive attitudes towards women. The outcomes and recommendations of this study would assist the government and other institutions to adopt effective measures to empower women and especially educate them so that they can assert and defend their human rights

The aim of this thesis is to analyse the silence principle (i.e. the right to silence and the privilege against self-incrimination) and to determine its place within procedural and constitutional law. Should the silence principle be entirely abolished, sustained as a limited evidentiary rule or elevated to the status of a constitutional right? The central question to be argued is whether the silence principle has a rationally justifiable and valid procedural place within the accusatorial-adversarial Anglo-American system of criminal justice. The methodology employed in the main body of this thesis involves a critical and comparative examination of the silence principle and is founded on the following four legs : a) A historical analysis of the silence principle and its antecedents. Does the historical silence principle support the modern silence principle in description and scope? b) An analysis of the distinction between a "right" and a "privilege". Why is the accused's right to silence distinguished from the witness privilege? Is there a philosophical justification for the silence principle? c) A comparative study of the two major jurisdictions of the Anglo-American system of justice, namely : i) The American silence principle constituted as the fifth amendment privilege against self-incrimination and entrenched within the U.S. Constitution; ii) The English silence principle constituted until recently as a common law evidentiary rule contained within a body of ill-defined principles loosely referred to as the unwritten English Constitution. The common law rule has been statutorily formalized in the Criminal Justice and Public Order Act 1994 and will be greatly influenced by the new Human Rights Act 1998. iii) The South African interpretation of a silence principle is caught between the two extremes of an American absolute right and an English evidentiary rule. Silence in South Africa is a relative right subject to a balance of interest and reasonable limitation. Which of these definitions is better suited as a template for an ideal silence principle? vi d) A comparative international study of the procedural differences between an inquisitorial and an accusatorial system. How does a principle of silence function outside the accusatorial system? The conclusion of the thesis is that the most suitable role of a silence principle within the accusatorial system is one of a flexible compromise. While it does not deserve abolition neither does it deserve elevation into a constitutional right. Silence is best suited to the role of a procedural evidentiary rule. A circumstantial item of evidence with its trial admissibility determined by the criteria of relevancy and prejudice. If the legal, political and cultural pressures upon a particular jurisdiction are such as to demand constitutional entrenchment then the second best alternative is to define the silence principle as a relative right susceptible to a properly applied balance of interest test. The worst alternative is to define the silence principle in absolute terms. Silence as an evidentiary rule or a relative right means that it will sometimes be necessary to emphasise the autonomous interests of the individual in remaining silent and at other times the societal interest in crime prevention. Which interest is to be preferred and to what extent will depend on the prevailing social pressures of the day. It shall be argued that the elevation of a silence principle into a constitutional right stifles a critical examination of the essentiale of silence by disguising its inherent irrationality and lack of a philosophical raison de etre. The interpretation of a silence principle as an absolute constitutional right by the Supreme Court of the United States is confusing, contradictory and riddled with innumerable exceptions. By contrast the English approach to silence is pragmatic and highly successful. The Criminal Justice and Public Order Act of 1994 gives a meaningful interpretation of silence which takes into account its logical flaws. The English statute is a successful compromise between the need to protect the individual during the criminal process and the need to combating crime in the most efficient manner possible. While the South African interpretation of silence is a workable compromise, South Africa may have been better served by defining its silence principle in terms of the pragmatic English statutory model which allows for the efficient but carefully controlled use of silence in the combating of crime. / Jurisprudence / LL.D. (Jurisprudence)

Text in Afrikaans / Prospektering is een van die eerste en belangrikste stappe in die mineraalontginningsproses en dit word ondersoek teen die agtergrond van die Mineraalwet 50 van 1991, wat die belangrikste "mynwette" herroep en die Suid-Afrikaanse mineraal- en mynreg in vele opsigte op 'n heel nuwe grondslag geplaas het. Die hoofdoel met hierdie proefskrif is om prospekteerregte te sistematiseer en te bepaal of dit beperkte saaklike regte daarstel. Ten aanvang word bepaal welke aktiwiteite prospektering daarstel en welke stowwe regtens as minerale kwalifiseer. Daar word gekyk na die regte waarvan prospekteerregte dee! vorm of waaruit dit afgelei word, naamlik eiendomsreg en mineraalregte. Die afskeiding van minerale van grond, die afskeiding van mineraalregte van grondeiendomsreg en die afskeiding van prospekteerregte van mineraalregte en grondeiendomsreg, asook die inhoud van en beperkings op die uitoefening van prospekteer- en mineraalregte, word ook ondersoek. Daar word veral aangetoon dat mineraalregte nie so wyd is as wat algemeen aanvaar word nie en dat dit 6f by die af skeiding van die roerende minerale tot niet gaan of uitgeput raak 6f in eiendomsreg daarop oorgaan. Prospekteerregte word meestal verleen by wyse van prospekteerkontrakte, waarvan daar verskillende verskyningsvorme bestaan en waarvan die een wat in die Registrasie van Aktes Wet 47 van 1937 omskryf word, as uitgangspunt geneem word. Aangesien die reg om te myn ook die reg om te prospekteer insluit, word die verlening van mynregte en antler verkrygings van prospekteerregte ook behandel. Alvorens gemeneregtelike prospekteerregte egter uitgeoefen mag word, meet magtiging daarvoor by die staat verkry word. Die verlening van statutere prospekteer- en mynmagtigings het by die inwerkingtreding van die Mineraalwet 50 van 1991 grondige veranderings ondergaan wat tesame met die relevante oorgangsbepalings ondersoek word ten einde die uitwerking van die wet op prospekteerregte te bepaal. Die vereistes vir en die regsaard van die verskillende regte word ondersoek ten einde 'n oorsig van prospekteerregte daar te stel en dit vlugtig met veral Australiese reg te vergelyk. Daar word tot die gevolgtrekking geraak dat blote prospekteerregte nie beperkte saaklike regte daarstel nie. / Prospecting is one of the first and most important steps in the minerals exploitation process and is examined against the background of the Minerals Act so of 1991, which repealed the most important "mining" legislation and in many ways placed the South African mining and minerals law on a completely new basis. The main purpose of this thesis is to systematise prospecting rights and to establish whether they constitute limited real rights. It is at the outset determined which activities constitute prospecting and which materials qualify in law as minerals. The rights from which prospecting rights are derived or of which they form part, namely ownership and mineral rights, are considered. The severing of minerals from land, the severing of mineral rights from landownership and the severing of prospecting rights from mineral rights and landownership, as well as the contents of and limitations on the exercising of prospecting and mineral rights, are also examined. It is in particular shown that mineral rights are not as comprehensive as is generally accepted and that they either terminate or are exhausted upon severance of the movable minerals from the land or are converted into ownership thereof. Prospecting rights are mostly granted by way of prospecting contracts, of which different varieties exist and of which the one defined in the Deeds Registries Act 47 of 1937 is taken as the starting point. Since the right to mine includes the right to prospect, mining rights and other acquisitions of prospecting rights are also considered. Before common law prospecting rights may be exercised, however, authority to do so must be obtained from the state. Upon the commencement of the Minerals Act 50 of 1991, the granting of statutory prospecting and mining authorisations underwent fundamental changes, which are examined with the relevant transitional provisions to determine the effect of the act. The requirements for and the juridical nature of the various rights are considered in order to establish an overview of prospecting rights and briefly to compare them mainly with Australian law. The conclusion is reached that mere prospecting rights do not constitute limited real rights. / Jurisprudence / LL. D.

The purpose of this study is to access the viability of traditional African courts in a future legal dispensation in South Africa. The research method used is a study of literature, court decisions and relevant statutes. The development of indigenous courts in South Africa is broadly outlined. As an analogy to the South African court system, the courts of Lesotho, Swaziland and Botswana are used to illustrate the dual systems of courts. Rapid urbanisation is discussed to illustrate that despite the increasing urbanisation, traditional values remain inherent to South African Blacks. The salient features of indigenous courts are analysed to facilitate the development of reform measures that have to be implemented so that the courts can meet the challenge of the future. / Constitutional, International and Indigenous Law / LL.M.

Law / LL.M.

Text in Afrikaans / The Companies Act, 1973 ("the Act") contains no specific provision dealing with the relationship between a nominee shareholder and its principal, the beneficial shareholder. The Act merely contains a variety of references to this unique relationship without specifying the content thereof or elaborating on the rights of the beneficial shareholder. It is clear from the Act that no legal connection exists between the company and the beneficial shareholder and a company is only obliged to recognise its registered members. It has become apparent that beneficial shareholders need more protection than is currently afforded to them in terms of our common law. Currently beneficial shareholders have a common law right to claim return of their shares from any person (even bona fide third parties) in the event of the misappropriation of such shares by their nominee shareholders. Beneficial shareholders are unprotected if their nominee shareholders were to act contrary to their instructions, for example by not voting at the general meeting in accordance with the instructions of the beneficial shareholders. Having regard to the fact that the relationship between the beneficial shareholder and the nominee shareholder is based on agency or trusteeship, the beneficial shareholder will be entitle to compel its nominee to transfer the shares to another person. This may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the only solution for the beneficial shareholder. In deciding which section of the Act should be adapted to include the rights of beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of prejudice), section 440K (compulsory acquisition of securities of minorities) and section 344(h) (liquidation on grounds of equity). The only one of these sections which provides the court with a wide enough discretion to afford the required protection is section 252. An important point in this regard is that section 252 cannot effectively be extended to beneficial shareholders unless they also acquire the right to have access to the same company information as the members of the company would receive. In an attempt to create a balance between the needs to greater protection of beneficial shareholders and the avoidance of unnecessary cumbersome administrative obligations on companies, it is suggested that a register of beneficial shareholders be created and that companies be obliged to inform all beneficial shareholders appearing on such register of the same company information as is provided to registered members. The Act must make it clear that : • a beneficial shareholder can only be recorded in the register with the assistance of its nominee shareholder; • the relevant nominee shareholder must satisfy the company secretary that the person which is recorded in the register is in fact its principal; • the only two instances where the company secretary will be entitled to remove the beneficial shareholder is in the first instance where the beneficia] shareholder consents to such removal and secondly where the shares held by the registered member is transferred. The latter ground will avoid continued provision of company information to persons not involved with the company. No duty will be placed on companies to ensure that the names and addresses of beneficial shareholders are correct. This will be the responsibility of beneficial shareholders. The improved flow of company information will facilitate the improved awareness by beneficial shareholders of relevant events and together with the appropriate extension of section 252, will go a long way in improving the much needed protection of beneficial shareholders. / Mercantile Law / LL.M. (Handelsreg)

In section 3(3)(d) of the Estate Duty Act 45 of 1955 (the Act) the legislature introduced the concept "competent to dispose", described in section 3(5) of The Act as a "power". If the deceased was "competent to dispose" property for his own benefit or that of his estate, section 3(3)(d) deems that property to be property of the estate. In order to determine when property may be deemed property of the deceased estate it is necessary to analyse the meaning of section 3(3)(d) as read with section 3(5) of the Act. An analysis of section 3(3)(d) of the Act indicates that it may be applied to those with a legal right to dispose of property for their own benefit or for the benefit of their estates. This interpretation is based on the meaning of "competent to dispose", and "power" as derived form the analysis. / Private Law / LL.M.