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South Africa and the International Criminal Court: investigating the link between complimentarity and implementationKulundu, Kenneth Wanyama January 2006 (has links)
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.
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South Africa's 2015 immigration regulations and the controversy concerning the right of the child travellerMuvhevhi, Roseline Rumbidzai January 2016 (has links)
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.
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A study of the nature, function and availability of orders of restitutio in integrum and specific performance as remedies in South African lawLambiris, Michael A January 1987 (has links)
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
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Discrimination against women under customary law in South Africa with reference to inheritance and successionMashalaba, Siyabulela Welcome January 2012 (has links)
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
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The right to silence and the privilege against self-incrimination: a critical examination of a doctrine in search of cogent reasonsTheophilopoulos, Constantine 08 1900 (has links)
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?
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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)
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Prospekteerregte in die Suid-Afrikaanse mineraal- en mynregNel, Wilhelmus Jacobus 06 1900 (has links)
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.
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South African indigenous courts : challenge for the futureSingh, Vijyalakshmi 04 1900 (has links)
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.
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The extra territorial application of South African competition law : lessons from the European Union and the United StatesZahn, Lynette 11 1900 (has links)
Law / LL.M.
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Statutêre beskerming van die voordeeltrekkende aandeelhouer in die Suid-Afrikaanse maatskappyereg / Statutory protection of the beneficial shareholder in terms of South African company lawDe Bruyn, Frederik Anton 11 1900 (has links)
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)
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Deemed property of the estate in terms of Section 3(3)(d) of the Estate Duty Act 45 of 1955De Souza, Tanya 11 1900 (has links)
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.
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