Includes abstract. / Includes bibliographical references (p. 246-263). / Parties to a contract base their consensus on the facts known to them at the time of contracting - should there be an unforeseen change in these circumstances, it may no longer be just for one party to enforce the agreement against the other. Because the losses and gains consequent upon a change in circumstances occur by chance, it is not fair to place the resultant burden on one party alone.

This thesis examines and evaluates the legal protection of privacy and personal data in South Africa and across Africa in the electronic health care industry, that is, where medical services are provided to individuals by way of networked technological platforms including mobile telephones. This thesis presents a critical understanding of, and pragmatic solution to, the questions that lie at the intersection of the following: an individual's right to privacy and data protection, cultural disparities when defining privacy, the emergence of electronic health care, the sensitivity of health related data, the need for health care in areas, where lack of resources and lack of accessibility are often commonplace, and the introduction of networked technologies within the health care system as a solution. Firstly, eHealth services and applications are described. Secondly, notions of privacy and data protection are considered. Thirdly, the prevailing legal determinants that form the basis of African and South African data protection regulatory measures are ascertained. Fourthly, selected illustrations are presented of the practical implementation of eHealth services and certain recent influencers within the digital environment, which may inform the future eHealth privacy regulatory framework. Finally, criticisms of the Malabo Convention are presented and recommendations advanced. As there is limited guidance with regard to policymaking decisions concerning privacy and data protection in the implementation of eHealth in developing countries, possibilities for reform are suggested. These will allow a more careful balance between, on the one hand, the normative commitment to providing accessible health care using electronic means and, on the other, the rights to privacy and data protection of the user, which require safeguarding within an African context. In proposing a solution, it is argued that adequate privacy regulation of electronic health must (1) be sensitive to societal and cultural differences in what is considered private, (2) be responsive to rapid technological transformation in healthcare industries, and (3) build user confidence in data protection in this context, to enable nascent electronic health initiatives to reach their potential in Africa. It is proposed that the adoption of an accepted social imperative protected by a powerful triumvirate of ethical constraints, effective legal provisions and regulations, and operational necessities, is possible. Greater regulatory collaboration across the continent is called for based on harmonised domestic and international laws, national policies, and industry codes of conduct that are sensitive to local conditions and challenges.

Drawing upon the work of Bruno Latour, this dissertation defends the thesis that the law is a factish: an indivisible blend of social and natural reality. The dissertation develops, in Latour's terms, a "non-modern" framework from which it draws, in turn, the philosophical foundations for a theory of factish law. This framework is presented as a paradoxical model of understanding, which situates the law within a broader understanding of reality. The model allows for several distinctions of modern analytical philosophy to be breached, without succumbing to a post-modern paralysis of thought. Applied within jurisprudence, it allows for an account of the law as factish that avoids the clash between positivism and natural law, preferring instead to draw upon insights from each tradition. This factish understanding of the law founds several related observations that together constitute the formative steps towards a theory of factish law. Instead of viewing the law as completely unique, the aspiration towards inviolability is identified as a central attribute of law, shared by actors as diverse as the laws of physics and the laws of the State, whilst the absence of this aspiration from customary law distinguishes it from the law without needing to create an implicit hierarchy of normative systems. Having explicated factish law, the dissertation moves to a proposed model of factish legality, drawing upon the model of paradoxical understanding, in order to explain the process by which the law is created. Alternate understandings of the rule of law and the separation of powers are posited in accordance with this model, as opposed to the dominant views expressed by South African jurists. Having established some of the theoretical commitments of factish law, the dissertation then focuses on the question of justifying the law in South Africa. In the course of the argument, the relationship between law and violence, the distortionary effects of South Africa‟s celebrated Bill of Rights and the contemporary demand for "African" South African law are considered and critiqued.

Includes abstract. / This work examines the change-of-position (loss of enrichment) defence comparatively in five jurisdictions, namely South Africa, Brazil, England Canada and USA. It advances a three-part argument which contends, first, that when a legal system opts for a general enrichment principle, it must equally limit it with defences. Secondly, that once the limiting mechanisms are chosen, the system must demarcate their contours and establish the inevitable exceptions. Thirdly, that legal system, as a consequence, must also decide whether to require a symmetric ‘gain-loss’ situation, i.e., whether to insist that the measure of recovery be limited by the plaintiff’s loss. If it chooses a symmetry ‘gainloss’, that system might face difficulties avoiding a passing on defence, as the reverse face of change-of-position on the plaintiff’s side, thereby potentially undermining indirectly the principle of legality. If it departs from that symmetry, the passing on defence may ‘normatively’ be ignored, unless for policy reasons it opts to have it. The study concludes that South Africa is bound to adopt explicitly a general principle of unjustified enrichment with change of position as the general defence applicable to all unjustified enrichment claims, save to claims arising from failed bilateral agreements. The study recommends that South Africa may give limited recognition to the passing on defence in its private law of unjustified enrichment where policy considerations do not militate against its application.

Background Golf has become an immensely popular sport around the globe. The competitiveness of golf and the livelihood it provides to the professional players has led to copious amounts of training and individuals pushing the physiological limits of their bodies in order to play the perfect stroke. Therefore, this population is prone to injury, with prevalence of injury as high as 60%. Literature has shown the lower back to be the most frequently injured anatomical region. There is still a lack of evidence regarding the cause of these high injury rates amongst the professional golfers. Furthermore, investigation of the incidence or associated risk factors of injury has not been conducted amongst the professional players from South Africa. The importance of identifying associated risk factors of injury in this population is of vital importance as this could potentially influence their livelihood directly. Aim The aim of this study was to investigate the incidence of overall and region-specific injury in professional South African golfers. Furthermore, the potential risk factors leading to these injuries were investigated. Results 17 participants (60.7%) reported an injury and a total of 23 index injuries were documented. The incidence rate of injury was 3.27/1000hrs of playing golf. The most frequently injured anatomical regions were the lower back and shoulder (26.1%). There were statistically significant differences in the joint range of motion of horizontal adduction of the leading shoulder (p=0.04) between the group reporting an injury compared to the group with no injury. Furthermore, statistically significant differences were found in decreased range of motion of internal rotation of the trailing shoulder (p=0.04) in the group with a shoulder injury compared to the group without a shoulder injury, and as well as in the group with hip pain compared to the group without hip pain (p=0.048). The group with hip injuries also showed a decreased range of motion of external rotation of the leading hip (p=0.048). Furthermore, a decreased range of motion of external rotation of the leading shoulder had a statistically significant difference (p=0.026) between the group that reported a wrist injury and the group that did not. The group that reported lumbar spine injuries had significant decreased range of motion of external rotation in the trailing shoulder (p=0.031), horizontal adduction of the trailing shoulder (p=0.015), horizontal adduction of leading shoulder (p=0.029), and internal rotation of the leading hip (p=0.003). Furthermore, the uninjured group spent more hours on total training in the eleventh week, which also presented a statistically significant difference (p=0.03). Conclusion In conclusion, injuries amongst professional golfers are common and the anatomical regions most affected are the lower back and the shoulder. Improving the range of motion of the leading and trailing shoulder horizontal adduction, trailing shoulder internal and external rotation, and internal rotation of the leading hip range of motion by means of mobility exercises could potentially minimize the risk of sustaining injury amongst professional golfers. Training volume did not present a statistically significant difference between the injured and uninjured groups in overall or region-specific injuries.

The inevitability of the death of all property owners means that the redistribution of property at death is a basic function of the law of succession. In the systems that recognise testamentary freedom (including South Africa), the right to distribute property after death is considered as a natural extension of the entitlements that an owner enjoys while alive. Testamentary freedom is an age-old common law principle that has formed part of our law since time immemorial. This right vests in individual owners, and courts (and functionaries of the state) are obliged to give effect to the clear intentions of testators as expressed in their wills. Ownership therefore forms the basis of the right to make testamentary disposals that become enforceable after death. In this way, a primary role of testate succession law is to extend the rights of owners after death. The question this thesis seeks to answer is whether the common law right to dispose of property after death is a constitutionally protected property right in light of constitutional commitments to redistribution, restitution and historical redress. This involves an interpretation of the nature, purpose and scope of section 25 of the Constitution in the context of the common law of testate succession. In this thesis, I critique the academic and judicial view that ownership is central to the constitutional protection of the common law principle of freedom of testation. I argue that the current interpretation of the property clause represents a one-dimensional view of property rights that ignores accepted constitutional property jurisprudence of the interpretive approach to the property clause, including its dual purpose in protecting as well as transforming property relations and the emphasis on our historical context of past discrimination. In essence, my thesis is a critical evaluation of the nature and scope of testamentary freedom for the purposes of justifying the redistribution of wealth and property at death. My ultimate goal is to show that the redistribution of property through inheritance law is politically and constitutionally justified.

Beneficiation is the process whereby minerals undergo value addition before exportation. For the beneficiation process to be successful, it must be regulated effectively by legislation. The United Republic of Tanzania (Tanzania), being a resource-rich country, enacted new mining laws and regulations to improve mining activities' economic benefits. However, Tanzania continuously fails to realise the intended purpose of the new mining laws and regulations, particularly in respect of benefit sharing. The bottom line is that this country fails to acquire a fair share of its mineral resource benefits. This dissertation argues that the beneficiation of minerals is one way to enhance a host nation's economic benefits from exploiting its mineral resources. The dissertation analyses the new Tanzanian mining laws and regulations on beneficiation and discusses their shortfalls. First, this dissertation inquires how the new Tanzanian mining laws and regulations promoted minerals' beneficiation as a benefit-sharing enhancement mechanism. Second, this dissertation inquires how Tanzania can improve these laws to ensure an increased share of benefits from mineral activities. This dissertation argues that the new Tanzanian mining laws and regulations have shortfalls and practical challenges on beneficiation. This dissertation offers recommendations to the Tanzanian government to carry out beneficiation to develop Tanzania and its citizens.

The doctrine of common purpose has been subject to much criticism, especially concerning its use under apartheid. However, the doctrine predates the apartheid era and I argue that it should now be recognised as a tool to achieve justice. The constitutionality of the doctrine was confirmed in Thebus and Another v S 2003 (6) SA 505 (CC). Despite agreeing with the outcome, it is my view that the judgment would have been stronger had the Court acknowledged that, by dispensing with the requirement of causation, the doctrine must be subjected to a proportionality inquiry to determine whether there was ‘just cause' to deprive the appellants of their freedom. I argue that depriving persons who engage in joint criminal activity of their freedom is just as it is necessary to ensure crime control and safety in communities and there are no effective less restrictive means available to achieve this purpose. While misapplication of the doctrine is a legitimate concern, this does not make the doctrine itself unjust. It is incumbent upon courts to scrutinise the evidence against each accused and only convict them under the doctrine where a common purpose can be proved. The recent Constitutional Court judgment in Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC) expresses the importance of the doctrine in combating crimes (especially those of a sexual nature) committed by persons acting in concert. The doctrine ensures prosecution of collective criminal activity, and liability thereunder can be avoided where an accused effectively dissociates from a common purpose. It is submitted that the doctrine is a proportionate means to achieve justice and is in fact necessary in a country like South Africa, ravaged by high levels of collective criminal activity.

This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences.

Includes abstract. Includes bibliographical references (leaves 157-169).