South Africa is a signatory state to the United Nations Convention on the Rights of the Child (UNCRC) which promotes child participation as an essential right. South Africa has the advantage of the Constitution of South Africa and the Children’s Act 38 of 2005 which give the child a voice but has the disadvantage of the Divorce Act 70 of 1979 which is parent-centric. This research will show that a conundrum exists between realising Article 12 of the UNCRC, Section 28(2) of the Constitution, Section 10 of the Children’s Act and the Divorce Act. It will be shown that there are insufficient efforts currently practiced in dispute resolution related to parenting disputes because of the reliance placed by legal practitioners more on the Divorce Act provisions which show lack of support for child inclusion than the intent of the Children’s Act to include children. This research focuses on the process of mediation and its benefits that make it the ideal environment to include the voice of the child in separation and divorce processes. A case will be made out as to why South African legislators should consider making child inclusive mediation a mandatory process ancillary to the dissolution of the relationship between the parents. Pathways created by the Australian and Canadian jurisdictions, as signatories to the UNCRC, in realising Article 12 of the UNCRC will be looked at. Their initiatives will provide the backdrop for consideration to improving child inclusive practices in South Africa. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Private Law / LLM / Unrestricted

The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other.

South Africa has a history of human rights atrocities that have created an urgency to attend to the previously marginalised and vulnerable groups of society. The Constitution of the state as well as other international treaties have created provisions that entrench the commitment to protect the child. This has been done through the inclusion of the 'best interests of the child' principle in the instruments. This study examines the development of the 'best interests' of the child. Furthermore, it analyses how and why the principle developed in the international and national context. The purpose is to come to the findings that the newly introduced Children's Act has created a better scope of protection than the previous common law precedent. The leading component of the study is criticising the method of the application of the 'best interests' of the child principle in South Africa. The author will specifically focus of section 7 of the Children's Act and prove why the courts should be applying this provision in child-related cases.

The purpose of this dissertation is to present an analysis of the relationship between the law of delict – specifically the element of factual causation – and the manner in which this element should apply to an assessment of the liability of gold mining companies in South Africa and their failure to protect mineworkers from exposure to silicosis, silico-tuberculosis and pulmonary tuberculosis. It is argued that the Constitutional Court's interpretation, and their ultimate application of the test for factual causation in Lee v Correctional Services 2013 (2) SA 144 (CC), in the form of the material increase of risk test, is precedent for the assessment of factual causation within the tuberculosis class in Nkala and Others v Harmony Gold Mining Co Ltd and Others 2016 (5) SA 240 (GJ). To underscore this argument, analogies are drawn between the powerful positions of gold mining companies and the State, and the vulnerable positions of mineworkers and prisoners in South Africa, as well as the Constitutional obligations owed by the State and gold mining companies towards prisoners and mineworkers, respectively. Furthermore, reasons why the material contribution test should apply to the silicosis class are discussed. This dissertation also outlines the statutory and common law duties owed by mining companies to underground mineworkers, for establishing these requirements is a requirement of the material increase of risk and material contribution tests. It is noted that the trial court in the Nkala class action suit should apply the aforementioned tests for factual causation to the two classes, failing which would be an injustice to legal precedent, and would be unfair and unreasonable.

One of the most important reasons for doing comparative work in the field of law is to get a better understanding of the legal jurisdictions of other countries. Studying the law of another country also enables one to understand one's own legal jurisdiction better. It helps one to see well-established principles in a new light and to ask questions about the continued applicability of such principles.

This dissertation argues that the novels of Henry James offer a conception of personhood and of human freedom better able to explain and unify private law than the conceptions currently dominant in private law theory. I begin by laying out the two conceptual frameworks that now dominate private law theory: Kantian right and the feminist ethic of care. I argue that Kantian right‟s exclusive focus on respect for freedom of choice makes it unable to explain private law doctrines founded upon concern for human well-being, including unjust enrichment, unconscionability, and liability for negligence. However, feminism‟s ethic of care, which can be understood as a response to the Kantian abstraction from considerations of well-being and need, is also incomplete, because its understanding of the person as essentially connected to others fails to respect human separateness. I then offer readings of James‟ novels—The Portrait of a Lady, What Maisie Knew, and The Ambassadors—that show how vindicating individual worth requires both respect for abstract agency‟s separateness and freedom to choose, on the one hand, and concern for the dependent individual‟s well-being and autonomous flourishing, on the other. I argue that these two ideas are complementary parts of a complete understanding of human dignity and freedom. Finally, I argue that this understanding illuminates doctrines of private law that remain mysterious on the Kantian account while avoiding feminism‟s tendency to immerse private law in public law.

This dissertation argues that the novels of Henry James offer a conception of personhood and of human freedom better able to explain and unify private law than the conceptions currently dominant in private law theory. I begin by laying out the two conceptual frameworks that now dominate private law theory: Kantian right and the feminist ethic of care. I argue that Kantian right‟s exclusive focus on respect for freedom of choice makes it unable to explain private law doctrines founded upon concern for human well-being, including unjust enrichment, unconscionability, and liability for negligence. However, feminism‟s ethic of care, which can be understood as a response to the Kantian abstraction from considerations of well-being and need, is also incomplete, because its understanding of the person as essentially connected to others fails to respect human separateness. I then offer readings of James‟ novels—The Portrait of a Lady, What Maisie Knew, and The Ambassadors—that show how vindicating individual worth requires both respect for abstract agency‟s separateness and freedom to choose, on the one hand, and concern for the dependent individual‟s well-being and autonomous flourishing, on the other. I argue that these two ideas are complementary parts of a complete understanding of human dignity and freedom. Finally, I argue that this understanding illuminates doctrines of private law that remain mysterious on the Kantian account while avoiding feminism‟s tendency to immerse private law in public law.

This thesis examines fraud as a basis for the voidability of transfers in Scots law. In particular, it focuses on misrepresentation and fraud on creditors. In so doing, an attempt is made to provide a principled account of the effect of fraud on transfer which can explain the well-established rules in this area, show how these rules fit within the broader framework of private law and provide some guidance as to the appropriate result in cases where a rule is not clearly established. This account depends on examining the development of the law from a historical and comparative perspective, with particular emphasis on the periods during which the relevant rules and institutions were being developed or received in Scotland and on the links between this process and the wider ius commune tradition. The central contention is that avoidance of a transfer on the basis of fraud is justified by a personal right held by the party at whose instance the avoidance takes place. In the core cases, this personal right is a right to reparation for a wrong for which the transferee is liable. At the periphery, the personal right may arise from the law of unjustified enrichment rather than from the law of delict. This characterisation of the basis of avoidance explains the protection afforded to subsequent acquirers and the limited effect which avoidance has in certain circumstances. It shows the interaction between the law of property and the law of obligations in this area and enables principles developed in the context of one instance of fraud on creditors to be applied to difficult problems in relation to other instances.

<p> </p><p>Denna uppsats syftar till att undersöka den nya bostadsformen ägarlägenhet och de befintliga ägandeformerna bostadsrätt och småhus. En komparation har gjorts mellan dessa tre ägandeformer gällande juridiska och ekonomiska frågor. Våra nordiska grannländers ägarlägenheter har också undersökts.</p><p> </p><p>Ägarlägenheten är enligt lagstiftaren ett "radhus på höjden", det vill säga en lägenhet i ett flerbostadshus som betraktas så som ett småhus. För att undersöka ägarlägenheten har den rättsvetenskapliga metoden använts. Litteratur inom området har behandlats med propositionen till lagändringarna gällande ägarlägenhet (2008/09:91) som främsta grund.</p><p> </p><p>Skillnaderna mellan bostadsrätten, småhuset och ägarlägenheten varierar beroende på sakfråga. De största variationerna är att bostadsrättsägaren endast innehar en del i föreningen med nyttjanderätt till sin lägenhet som är lös egendom enligt köplagen (1990:931). Småhuset och ägarlägenheten är fast egendom och faller under jordabalkens (1970:994) regler. i en bostadsrätt måste föreningen godkänna in- och utträde av medlemmar vid överlåtelse, för småhusägaren tillika ägarlägenhetsägaren krävs det inget godkännande. Andrahandsuthyrning är fritt för småhus- eller ägarlägenhetsägaren medan det krävs godkännande från bostadsrättsföreningen vid bostadsrättsinnehav.</p>

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