An analysis of the historical development of the trust in South Africa indicates that the trust has formed a part of South African jurisprudence for almost two centuries and, as such, has become a vibrant, dynamic and highly versatile institution in both commercial and legal practice. Initial recognition of the trust was occasioned chiefly by piecemeal (and fragmented) pre-Union legislation and case law. After 1910 the existence of the trust was confirmed by the Appellate Division â at that time the highest court in South Africa â and uniform legislation become applicable throughout the four provinces of the newly-established Union. The 1913 Administration of Estates Act was the first post-Union Act to apply to the law of trusts. This Act however only applied to the testamentary trust, but other legislation (such as the Trust Moneys Protection Act of 1934) eventually followed which applied to both testamentary and inter vivos trusts. The promulgation of the Trust Property Control Act 57 of 1988 is, however, widely regarded as being the most important contribution by the Legislature to the South African law of trusts. Section 6(1) of the 1988 Act introduced the requirement of written authorization of all trustees before they could act in that capacity. However, despite the seemingly clear and unambiguous wording adopted by the Legislature, the Courts have not interpreted and applied the section in a uniform fashion, leading to great uncertainty especially as far as the effect of non-compliance with section 6(1) is concerned. This dissertation attempts, by way of the legal historical method of research, to analyse the reported cases dealing with section 6(1), to compare the development of the requirement of written authorization with analogous requirements posed by previous legislation, and, as a consequence, to determine the true purpose of and rationale behind the insertion of the section. In order to combat the current uncertain legal position, three possible solutions are suggested, namely common law mechanisms, legislative intervention, and the correct interpretation of section 6(1).

Worldwide, the prescription, dispensing and administering of medication is the most common form of medical treatment. The number of medication errors made in a medical care system/institution is regarded as a good barometer of the general standard of care in that system or institution. The number of medication errors that come to light, however, is only the tip of the iceberg because such errors can be swept under the carpet more easily than, for instance, botched surgery. Research also indicates that the prescription of medication as form of treatment, is not regarded as the high risk activity that it really is. This research offers a comprehensive source regarding medication errors as seen from a legal perspective. The extent and occurrence of medication errors (prescription, dispensing and administration errors) are discussed with the aim of bringing these to the attention of both lawyers and health care workers. Doctors, pharmacists and nurses often experience uncertainty about their legal position and how to deal with problematic situations. Specific problematic areas are identified and solutions are offered including the following: ⢠The more important legislation with regard to medication treatment is discussed. Interaction between the different statutes and regulations, as well as government policy declarations regarding the prescription and dispensing of medication, is apparently not sufficiently synchronised. This leads to uncertainty amongst health care professionals and increases the chances of medication errors. It is suggested that these aspects be revised and harmonised on an urgent basis. ⢠The âoff-labelâ use of medication is an international phenomenon and part of the generally accepted and lawful use of medication. The increased risk it poses to the patient, as well as to the medical practitioner (with respect to legal liability) is discussed. In South Africa no guidelines are supplied to doctors with regard to the âofflabelâ use of medication. More assistance and balanced, objective information from government and pharmaceutical companies is imperative. An amendment to current legislation is suggested. ⢠The problems surrounding the administration of pain medication and especially the failure to give sufficient pain medication, are identified and discussed as one of the most prevalent forms of medication errors. Proposals for legal liability are discussed. ⢠Causation and âloss of a chanceâ with the focus mainly on examples of medication errors, are discussed and recommendations are made in this respect. ⢠Suggestions regarding legislation with regard to training, legal liability and the use of technology and reporting systems in the prevention of medication errors, are discussed. The implementation of a system approach is discussed and recommendations are made in this regard.

In strictly adhering to the concept of marriage inherited from the Western legal tradition, pre-1994 South African family law paid scant regard to marriages other than monogamous heterosexual civil marriages, while the common law provided no express legal recognition for unmarried life or domestic partnerships. The advent of the democratic constitutional era in 1994 however spawned a flurry of legal development that broadened the notion of marriage by recognising customary marriages as well as certain consequences of marriages concluded according to the tenets of a recognised faith such as Islam. Commencing with the watershed National Coalition for Gay and Lesbian Equality cases,1 the legal position in which same-sex life partners found themselves was also dramatically improved by a number of ad hoc judicial pronouncements which extended certain consequences of marriage to such partners on the premise that they were at the time precluded from marrying one another. The flipside of this premiseânamely that heterosexual life partners have always been permitted to marry one another and thus cannot request an extension of matrimonial (property) law where they have exercised a choice not to marry (the so-called âchoice argumentâ)âwas, however, to constitute the major justification for the judiciaryâs refusal to extend similar recognition to heterosexual life partners. The application of this line of reasoning has implied that, within little more than a decade into the democratic constitutional dispensation, same-sex life partners ostensibly enjoy better legal protection and recognition of their relationships than their heterosexual counterparts. This state of affairs implies that the current legal position regarding unmarried life partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided increasing recognition for unmarried life partners. However, as was the case with the judicial developments, the legislative developments were also merely piecemeal in nature. The upshot of this state of affairs is that interpersonal relationships in South Africa are governed by âa patchwork of laws that did not [and still do not] express a coherent set of family law rules.â2 While the validation of same-sex marriages by way of the promulgation of the Civil Union Act 17 of 2006 was a salutary development from a human rights perspective, this development has created difficulties of its own. To begin with, the validation of samesex marriage implies, strictu sensu, that the âchoice argumentâ applies equally to samesex couples who elect not to marry one another. This entails that such couples could potentially be deprived of the consortium omnis vitae that the Courts have in principle found to exist between them and that they may no longer be able to rely on the piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day on which same-sex marriage became permissible). The legal position in this regard however remains unclear. In addition, the validation of same-sex marriage has been accomplished by way of legislation that not only requires same-sex couples to marry one another in terms of separate legislation but that also further overcomplicates the legal landscape by providing for âcivil unionsâ that can take the form of either marriages or civil partnerships. As such, no legislation has as yet been enacted that deals with the position of life or domestic partners per se. In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using this Bill as a prototype, this study attemptsâby applying a domestic partnership rubric that requires the modification of the Bill and its calibration with attendant legislationâto iron out the inconsistencies and anomalies alluded to above by providing effective domestic partnership legislation. In order to achieve this, an in-depth analysis of case law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships legislation itself, but which are also required in order to facilitate the Billâs alignment with applicable legislation. In the light of the modified Bill, the study concludes with an evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis, the conclusion is reached that the enactment of the Domestic Partnerships Bill as developed in accordance with the rubric, coupled with the repeal of the Civil Union Act 17 of 2006, will provide a more consistent, coherent and less complex legal framework within which interpersonal relationships in South Africa can be regulated.

Nigerian divorce laws and the divorce litigation process pose severe psychological, social-cultural, economic, and legal problems for families going through divorce in Nigeria. This thesis argues that divorce mediation may be able to ameliorate the harsh effects of these laws and process. This thesis seeks to achieve the following objectives: (1) To determine if the divorce mediation process can achieve the goals of a good divorce process, (2) To determine if the divorce mediation process can provide solutions to the myriad of unique problems which face families going through divorce in Nigeria, and (3) To determine the possibility of incorporating divorce mediation into the family dispute resolution system in Nigeria through an institutionalized divorce mediation program at the government-funded citizens' mediation centres. These objectives are achieved through an in-depth review of the customary and statutory laws regulating marriage and divorce in Nigeria as well as a review of the divorce litigation process in Nigeria. This thesis employs both desk and empirical research methods. It examines legislation, policy documents and academic treatises on divorce and divorce mediation. It also utilizes semistructured interviews to examine the Citizens' Rights and Mediation Centre, Enugu State, to determine its viability as a vehicle for the institutionalization of divorce mediation in Nigeria. The thesis finds that indeed divorce mediation achieves the aims of good divorce law. It further finds that while the divorce mediation process is not a panacea, its features lend themselves easily to the resolution of the myriad of problems which face families going through divorce in Nigeria. It also finds that divorce mediation can be incorporated into the Nigerian family dispute resolution system through an institutionalized divorce mediation program at the state-funded citizens' mediation centres present in several states in the country. It concludes that incorporating divorce mediation into the family dispute resolution system in Nigeria will ameliorate some of the harsh effects of the current divorce system. It offers short and long term proposals for the institutionalization of divorce mediation in Nigeria.

This thesis discusses the following: 1. That, while advertising practitioners employ various levels of scientific endeavour (particularly strategic insight development, but also research, demographic data collection, and other objective tools of the trade), its final output is ultimately nonscientific, i.e. subjective creative ideation. (In this way, advertising is not dissimilar to the classic ‘art' of propaganda.) 2. That, for reasons of business necessity, creative ego and a latent form of ‘inferiority complex' the advertising industry describes its work in presentations to more scientifically-orientated clients as a more scientific proposition. 3. That, in contrast, as evidenced by the physical production process of the advertising idea (post the client presentation) – as well as in industry texts, award ceremonies, and selected case studies – advertising practitioners effectively acknowledge the subjective nature of their work. 4. That further evidence of this scientific ‘terministic screen' (Burke 1950, pp. 26-27) is also revealed in the failure of some television commercials to profitably ‘connect' as intended with an audience – thus undermining claims to the objective approach that preceded these commercials. 5. That, possibly, as is implied in at least one ethnographic case study, not even clients are necessarily convinced by advertising science: the ‘screen' may be a two-way mirror. 6. That there is, more broadly, a constant dialectic between right-brained creativity and the left-brained business project. 7. That this tension is a microcosm of the capitalist enterprise, and, in an increasing number of present examples, is perversely reflected in the advertising industry's output as anti-capitalist brand messaging. 8. That it is possible to think of advertising as a sub-set of a more consumer-orientated ‘design'. 6 9. That, admittedly within limited confines of my research, there is a tantalising indication that, generally, advertising artefacts were historically more logos-led, are currently more pathos-led, and may in future benefit from a more ethos-led orientation.

This dissertation addresses the most neglected form of sexual violence in Kenya - marital rape. Drawing from prevailing statistics and testimonies by survivors, it confirms the existence of marital rape in Kenya and delves deeper into the prevailing social and legal dynamics that condone it. On examining the existing legal framework governing sexual violence in Kenya, the finding is that there is no law that explicitly criminalises marital rape. Marital rape is a human rights issue as it curtails women‟s enjoyment of their right to equality and dignity. This dissertation argues that Kenya has a duty to honour her State obligations under international human rights law to respect, protect and fulfill human rights. The dissertation concludes that by not criminalising marital rape, Kenya has failed to satisfy her treaty obligations under International Human Rights Law. The dissertation further draws insights from other jurisdictions‟ legal responses to marital rape through a comparative study of South Africa, India and Australia. The main recommendation of this dissertation is that Kenya should explicitly criminalise marital rape in order to respect, protect and fulfill her human rights obligations pertinent to women. Moreover, it is recommended that a comprehensive response to marital rape requires the State to embrace both legal and extra-legal reforms that will not only criminalise but ultimately combat marital rape in the long term.

Judges of formal courts in Nigeria and South Africa do not easily have access to the contents of customary law they are required to apply in the course of adjudication and this has been a major challenge. This thesis examines the processes that courts adopt in the ascertainment and application of living customary law in Nigeria and South Africa in order to discover factors that influence the ascertainment and application of customary law. This research is qualitative in nature and utilises both doctrinal and empirical methods to make its findings. It examines the conceptualization of customary law in the context of the research against positivist and pluralist theories and analyses the doctrine of judicial discretion against relevant theories on how it impacts on the ascertainment and application process. The thesis also examines the current laws and procedures that regulate this exercise to discover how it contributes to what is ascertained by the court. For its primary sources, it utilised data obtained from the semistructured interviews conducted, and, records of proceedings of cases on customary law heard by the formal courts in Nigeria and South Africa within a fifteen-year period. The secondary and tertiary sources utilised include text books, journal articles, official reports and publications, and other literature. It identifies factors within the purview of institutional, substantive, procedural, socio-economic and political factors, as well as other factors that influence how judges exercise discretion in the ascertainment and application of living customary law. The thesis states that these factors contribute in varying degrees, to enhance or impede the ascertainment and application of living customary law by these formal courts. It therefore proposes the consideration of these factors in the policies that seek to develop measures that would enhance the ascertainment and application of living customary law by the formal courts in Nigeria and South Africa.

The General Agreement on Tariffs and Trade 1947 (hereafter referred to as the GATT) emerged in the aftermath of World War II and, despite the initial intention that it would serve as a mere interim arrangement while the administrative framework of the International Trade Organisation was finalised, the GATT would proceed to guide the course of multilateral trade throughout the twentieth century. What is often overlooked in mainstream analyses of the key principles underpinning the liberal international economic order is the significance of the negotiating history of the GATT which was dominated by two main participants, the United States and the United Kingdom. These parties experienced very different growth trajectories following World War II and so sought to advance different national interests within the negotiating forum. Briefly, while the United States was benefitting from an unprecedented increase in its economic and political power and wanted to see greater market access for its domestic industries, the United Kingdom was undergoing a difficult period of recovery and wanted to consolidate its system of imperial preferences. Nevertheless, because neither could unilaterally dominate the international policy space and because both recognised the value in promoting free trade for international political stability, they would ultimately reach a negotiated compromise resulting in the final codification of the GATT. In adopting a historical and textual methodology, this dissertation will argue that, in order to gain a more nuanced understanding of the principles underlying the GATT, one ought to examine the complexities of the negotiations leading up to its final codification, including the domestic interests advanced by the negotiating parties as well as contemporary hegemonic power dynamics.

This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.

This thesis circles around the history of the criminalisation of cannabis as well as its decriminalisation around 100 years later. While dagga was cultivated and used by the indigenous tribes long before the first settlers arrived and even remained a legal substance during the colonial period, with the implementation of the first national legislation in 1922, the long history of harsh punishments began. Relating the harsh legislation on dagga to its estimated risks, I ultimately confirm dagga to be the black sheep among drugs, having experienced a racial prohibition. In September 2018, the Constitutional Court partially decriminalised dagga, due to the inconsistency of certain regulations prohibiting the use, possession, and cultivation of dagga with the right to privacy as referenced from section 14 of the Constitution. Emphasising the significant and practical impact of this judgement, possibly positive effects of the decision as well as the newly introduced Cannabis for Private Purposes Bill on the desperately overwhelmed criminal justice system are examined. Concluding, I find that the discourse around dagga most certainly is far from complete but that we have to continue conducting it. Because if history teaches us one thing it is that dagga is here to stay.