Environmentalists citizens groups, legal practitioners academics and the ordinary citizens in South Africa today are over-excited with the prospects of the environmental rights litigation under the final Constitution of the Republic of South Africa Act 108 of 1996 signed by the State President in Cape Town on the 18th December 1996. For the first time in the history of South Africa environmental rights have been lifted to the status of fundamental constitutional and human rights. From an environmental perspective the upliftment of environmental rights to the level of constitutional protection is a great achievement that will benefit all South Africans. This dissertation throws some light on the concept of locus standi and public interest litigation as they have developed In the New South African Constitution followed by an exposition of the common law rules of legal standing. The focus of attention will then turn to the extent to which the Interim Constitution of the Republic of South Africa Act 200 of 1993 and the final Constitution of the Republic of South Africa Act 1996 extend or broaden the scope of standing followed by a brief survey of legal standing of environmental associations in various countries. Finally the document will conclude with a brief commentary on the law of standing in South Africa and possible suggestions for reform. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1997.

No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2008.

No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 1994.

From a survey of media reports and other documentary sources, illicit drug trafficking and trade seems to be a prevalent problem in South Africa today. Drugs are being shipped undetected in containers, which poses a significant threat to maritime security. The drug trade is also having a negative impact upon one of South Africa's valuable resources, abalone. It appears that there is a substantial nexus between the poaching of abalone and the illicit drug trade in South Africa. Abalone is considered to be a delicacy in the East and research shows that a substantial amount of drugs in South Africa has originated from the illicit trade of abalone. v This dissertation will examine illicit drug trafficking and trade with particular reference to the maritime industry which facilitates this illicit trafficking and trade through ineffective security measures governing containerisation; and also through the abalone trade. A survey of media reports, articles, reviews, Institute for Security Studies papers, books and the World Drug Report 2012 set the scene of illicit drug trafficking and trade in South Africa as being prevalent and damaging to the country's security measures. A review of South Africa's domestic legislation and the international conventions to which it is party is necessary to determine whether the law governing illicit drug trafficking and trade is adequate to address the issues highlighted above. The focus of this dissertation will then shift to wards the issues surrounding implementation and enforcement of these laws. The enforcement and implementation of the law seems tainted by corruption, lack of skills and morale and inexperience and therefore these issues need to be addressed in order to fully combat illicit drug trafficking and trade in South Africa's maritime industry. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

Modern maritime piracy is cause for major concern around the world. Although there have been preventative measures deployed by maritime nations to counter the crime, there is a need to develop an efficient regime to prosecute pirates. The general modus operandi that is employed by arresting-vessels is a 'catch-and-release' procedure, which means that there are no further steps taken to bring these pirates to account for their crimes. The purpose of this dissertation is to analyse the main challenges that face domestic judicial systems in prosecuting pirates of the high seas. Chapter 1 of this Dissertation sets out the parameters of the study, followed by Chapter 2 which will detail current international instruments that specifically relate to the crime of maritime piracy. This would include an examination of the successes and shortcomings of the piracy provisions of UNCLOS Articles 1 00 - 107, the recent UNSC Resolutions, SUA, and the IMO as well as discuss the 1MB PRC and other Regional Agreements in place to counter piracy and provide for the successful prosecution of suspected pirates. Chapter 3 will focus on the prosecutorial problems dealing with the crime of piracy that face judicial bodies around the world. The Chapter will highlight and discuss the various political and human rights issues that have discouraged the majority of states from prosecuting suspected offenders of this crime, as well as their reluctance to exercise universal jurisdiction over piracy. In addition, the recent Kenyan ad hoc piracy tribunal decisions will be discussed in order to assess the lack of uniformity in the interpretation and application of international law piracy provisions as against domestic law. Chapter 4 examines the South African Law and Policies in place that counterpiracy, and also considers whether South Africa could exercise jurisdiction over piratical matters. Thereafter, Chapter 5 proposes recommendations that may be employed in order to bring about a much needed uniform approach to the successful prosecution of suspected pirates. Lastly, Chapter 6, shall comment and conclude on the findings of the previous chapters. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

Exclusionary clauses in South Africa have thus far been interpreted narrowly by the South African Courts. It has been accepted that where a patient enters into a medical contract/agreement with a hospital that includes a clause excluding the hospital and its employees from any form of liability whether negligently or not, the patient has no form of recourse against the hospital for any damages caused except that caused by gross negligence; the hospital will be absolved of any form of liability. The term caveat subscriptor applies – “let the signer be aware” that he/she is bound by the agreement signed by him/her whether or not it was read and understood. The leading case in South Africa dealing with exclusionary clauses in medical contracts is Afrox Healthcare Limited v Strydom. Since that decision the Consumer Protection Act has came into existence. My research question involves determining the impact an exclusionary clause would have, when analysed in terms of the provisions of the Consumer Protection Act with particular reference to its applicability and enforcement in medical/hospital contracts. The Afrox case has in itself been a controversial decision, with many legal writers of the opinion that the principles laid down by the case need to be overturned as the judgement is not in line with public policy. It is argued that with the Consumer Protection Act in place, it can be assumed that exclusionary clauses in medical/hospital will no longer be valid. The Act is a step in the right direction towards patient/consumer protection and awareness. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

Thesis (Ph.D. (Law)) - Rhodes University, 2009.

Since 25 January 1994, when the interim Constitution came into operation, South Africa's criminal justice system became subject to constitutional provisions, especially the Bill of Rights. All forms of punishment and treatment are subject to the provisions of the Constitution. The first casualties were the death penalty and corporal punishment, which were found to be unconstitutional by the Constitutional Court. Since our criminal justice jurisprudence is still in the developing stage, a comparative analysis with the Canadian and American penal systems forms part of this thesis. Provisions of the Constitution, which will have an indirect influence on punishment include, access to information, just administrative action and state institutions supporting democracy. The following provisions of the Bill of Rights are expected to have a significant impact on punishment in all its facets, equality; human dignity; life; freedom and security of the person; freedom from slavery, servitude and forced labour; and the rights of children. Judgments of the Constitutional Court, which abolished the death penalty and corporal punishment are examined since they were the first indication the Court gave on aspects of punishment. The Constitution also deals specifically with the rights of arrested, detained and accused persons. It is within this provision that 2 the rights of prisoners are spelt out. Imprisonment as a form of punishment, has to conform to the provisions of the Constitution, and the Correctional Services Act is an attempt to render imprisonment compliant. With the abolition of the death penalty and corporal punishment, the effect of constitutional provisions on conventional forms of punishment and the overpopulation of prisons, the establishment of alternative forms of punishment, which would pass constitutional muster, is imperative. The Child Justice Bill is an attempt to establish a unique system for juveniles who commit offences / Penology / D. Lit. et Phil. (Penology)

No description available.

In the past 20 years the defence of provocation has shifted from the periphery of South African law to a fully developed defence available to those who kill when provoked. Not only is the defence available to the provoked, but it has been extended to those who kill when subjected to emotional stress. However, the defence is mirred in controversy and bad decisions. Not only has the precise nature of the defence not been clarified, but this lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice. Three major problems have plagued the provocation defence. Firstly, the courts have confused the defence of sane automatism with that of non-pathological incapacity. Secondly, there has been an implied use of an objective test in determining criminal incapacity where the enquiry has clearly been a subjective one. Thirdly, it has been held that the problem may not so much be the subjective aspect of provocation, but rather its application. The real problem seems to lie in the theoretical confusion as to the precise meaning of lack of “selfcontrol”. Lastly, on occasion the courts have failed to distinguish lack of capacity from diminished responsibility. Thus, in order to gain clarity concerning this “grey” area of the law these problems have created, it is necessary for South African law to consult more authoritative sources to receive guidance for the problems identified. One of those sources that has been consulted is that of English law. English law, however, deals with the defence of provocation in a different manner. Raising a defence of provocation here does not result in an acquittal but rather in a reduction of the charge to manslaughter. However, the English law on provocation is also 7 plagued by various problems. Firstly, there is the issue of cumulative provocation. Generally, there is little difficulty in cases where there is no “immediate trigger”. Secondly, the fundamental flaw with the current test of the reasonable man is that the courts have had to swing between the two aims of taking a compassionate view of human frailty while endeavoring to maintain an objective standard of the reasonable man. Lastly, it can be said that the problem with the proportionality requirement is that it makes the provocation defence dependant upon the assessment of the accused’s conduct after he or she lost his or her selfcontrol rather than on his or her giving way to passion and losing control in the first place. It is clear that from the problems identified in both South African law and English law concerning the defence of provocation the courts in each jurisdiction will have to pay careful attentio n to the problems highlighted and apply the law in such a way so as to ensure clarity and legal certainty.