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

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 & Indigenous Law / LL.M.

Thesis (LL.D.)--University of South Africa, 2001.

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.

Thesis (D. Litt. et Phil.)--Universiteit van Suid-Afrika, 2002.

Text in Afrikaans / Constitutional, International & Indigenous Law / LLM

Law / LL.M.