Domestic Violence is a pervasive social evil which must be combated with every means possible. To this end, the legislator enacted the Domestic Violence Act, 116 of 1998 (hereafter referred to as the DVA) to provide for a fast and accessible process by which the victims of domestic abuse can obtain an interdict to protect themselves against further acts of violence. Section 7(1)(c) of the DVA allows for a court, when considering an application made for a protection order in terms of the Act, to make an order prohibiting the Respondent from entering the shared residence of the Applicant and Respondent. Section 7(1)(d) allows for a court, when considering an application as mentioned, to make an order prohibiting the Respondent from entering any specific part of the shared residence. It is argued that the orders provided for in sections 7(1)(c) and (d) amounts, de facto, to an order that evicts the Respondent from the shared residence. Evictions are a traumatic procedure for the person(s) concerned, and endangers a large variety of human rights. It should therefore be approached with extreme caution to ensure that no person’s fundamental rights are infringed. Section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution) determines that no person(s) may be evicted from their home without a valid order of court, which order should be granted only after taking into consideration all the relevant circumstances. Specific pieces of legislation have been enacted to regulate the eviction process, prescribing specific procedures and setting requirements for a legal eviction. When an order is given in terms of section 7(1)(c) of the DVA, these procedures are not followed and the requirements are not met, resulting in illegal evictions. These orders may further infringe upon certain fundamental rights of the Respondent, such as the constitutional property rights set out in section 25, and the right of access to the courts. The concerned sections of the DVA can be justified under section 36 of the Constitution. However, it is argued that the DVA is in practice frequently misused by applicants, to such an extent that it becomes a tool of abuse, defying the whole purpose of the Act and extreme caution should be used by presiding officers when considering applications for orders in terms of sections 7(1)(c) and (d) of the DVA. / LLM, North-West University, Potchefstroom Campus, 2015

The recognition in law of pension benefits and expectancies, as a matrimonial asset which may be subject to certain claims (and counterclaims), occured in South Africa in 1989. The starting point of this development was an investigation in 1984, on: "the possibility of making provisions for a divorced woman to share in the pension benefits of her former husband ". This investigation came about, in South Africa, after the matter had already been accepted, in many foreign legals systems, as a well-established, and most important concept of family law. The obvious question for the South African legislature was which of the pension-sharing schemes throughout the world would best serve as a model. Since the South African accrual system was largely based on the German Zugewinngemeinschaft, it seemed only natural that a close comparative study should be made of Germany's Versorgungsausgleich scheme. It is one of the aims of this thesis to point out whether and to what extent South Africa followed the German example. To do so, it will be necessary to examine first the different legal situations which were prevalent before and after the legal changes in the two countries and to elaborate on the reasons which led to these changes. The discussion in chapter three of how the German system of equalisation of pension expectancies, the so-called Versorgungsausgleich, is applied, will facilitate a comprehensive comparison with the South African scheme. The questions to be answered in the fifth chapter are whether it is appropriate to examine the equalisation of pension expectancies under South African law, which was only recently introduced, in a comparison with the German system and whether it is possible to speak of a Versorgungsausgleich when referring to the South African situation. Whenever possible, I have attempted to suggest solutions that may appear acceptable. To conclude the thesis, certain pension sharing problems arising under South African private international law will be briefly commented upon. / Private Law / LLM

The purpose of this Thesis is to determine which set of private law rules ought to apply to the use and storage of bodily material. I recommend that the most appropriate legal approach is through a combination of property rights and duties of confidentiality. The suggestion is that where a healthcare institution obtains possession of bodily material, their possession of the material may give rise to property rights in the material. In addition, where an individual retains entitlements in bodily material that is held by a healthcare institution, the entitlements of the individual ought to be protected through the imposition of duties on the healthcare institution that are akin to duties of confidentiality. This recommendation is the product of two main inquires. The first inquiry concerns which entitlements individuals and institutions ought to be able to exercise in separated bodily material. This involves an investigation into which aspects of the relationship between a person and their body can also be found in the relationship between a person and their separated bodily material. It also involves an assessment as to which societal interests can be served through allocating entitlements in bodily material to healthcare institutions, and how to resolve the conflict between individual and societal interests in the use and storage of bodily material. The second main inquiry concerns the way in which different branches of private law are able to protect entitlements in things. I identify that property rights, rights of bodily integrity and privacy are similar insofar as they protect entitlements through the exclusion of others. Property rights are nonetheless distinct as property law concerns rights than can exist independently of the rights-holder. The recommended approach follows from connecting the different entitlements in bodily material that ought to obtain legal protection with different ways an entitlement may be afforded legal protection.

The central tenet of tracing theory is that in certain circumstances it is possible to show that one asset stands in the place of another, such that any claims in relation to the original asset can be transmitted to its substitute. Since at least 2001 academic and judicial orthodoxy has been that this is done by following the path of value from one asset to the other, and can be aided in more complex cases by the application of evidential rules or presumptions. These ideas are at the heart of existing accounts of proprietary claims against trustees who deal with trust assets without authority, and personal and proprietary claims against strangers to the trust. They are also at the heart of calls to 'unify' the rules of tracing at law and in equity, removing existing distinctions drawn between claimants who are owed fiduciary duties and those who are not. In this thesis it is argued that there are no independent processes of following and identifying value, and that the language of 'tracing value' has lent the appearance of neutrality and conceptual unity to disparate heads of fiduciary and non-fiduciary liability. Most importantly, it has led to the assumption that in any case in which a claimant can demonstrate that a series of transactions links some right in the defendant’s hands with a right previously held by or for the claimant, the claimant can claim that right. In this thesis it is argued that far from creating an arbitrary practical obstacle for claimants seeking to trace and locate value, the fiduciary relationship is at the heart of the justification for any claim that exists to a new right in the hands of someone else.

Démontrer la possible émergence d'une nouvelle régulation économique mondiale est l'objectif de ce travail. Notre étude a envisagé les législations internationales et nationales relatives aux droits économiques, sociaux et culturels à la lumière de l'important problème des droits de propriété industrielle.Cette régulation, fondée sur le droit à la conditionnalité universelle, offre une application effective du droit à l'alimentation par le biais d'une transformation de la répartition de la production agricole et par le biais d'une législation en matière de propriété industrielle permettant l'accès aux denrées alimentaires à tous. / Demonstrate the possible emergence of a new global economic regulation is the objective of this work. Our study considered the international and national laws relating to economic, social and cultural rights in light of the significant problem of industrial property law. This regulation, based on the universal right to cross-compliance, provides an effective implementation of the right to food through a change in the distribution of agricultural production and through legislation on industrial property to access to food at all.

This thesis explores the arguments and evidence for reform of commercial property leases through legislative intervention. It identifies and explains the causes of landlord and tenant disputes arising mainly from poorly drafted commercial leases. It investigates the relevant codes for leasing business premises, the Law Society business lease, the regulatory reform of part II of the 1954 Act, the British Property Federation lease, and various other attempts at reform of commercial property leases. This research also investigates the potential need for ethnic minorities in commercial property to have the key legal terms of commercial property leases made available in both English and other languages. There is little previous academic research on reform of commercial property leases through legislative intervention (other than Crosby Reading reports). This research aims to contributute towards filling the gap that exists in the literature by investigating reform through legislation. This research involved semi-structured interviews with participants from five groups: lawyers, surveyors/agents, landlords, tenants and business owners. Most interviewed supported reform of commercial property leases through legislative intervention, and better guidance explaining the meaning of key legal terms of commercial property leases, especially from ethnic minority businesses.

Many scholars have suggested that current copyright law is ill-equipped to the challenges of determining the authorship of collaborative work. This thesis analyses four case studies of large scale collaboration (Wikipedia, Indigenous art, scientific collaborations and film) in order to consider how best to determine the authorship of the creative works that they produce for the purposes of copyright law. Current scholarship and much of the case law has tended to favour a restrictive approach to the grant of joint authorship status, in order to minimise the number of potential authors of a work. This is motivated by instrumental/pragmatic concerns related to the ease of exploiting a copyright work. As joint authors are often joint first owners of copyright, proponents of this approach fear that a minor contributor might cause hold-up problems by refusing to consent to licence or assign their copyright interest. This thesis argues that an instrumental/pragmatic approach to the application of the joint authorship test is undesirable, because it distances the test both from the creativity reality of collective authorship and from copyright’s notion of the author. In addition, the instrumental/pragmatic approach relies upon assumptions about creators, the creative process and the exploitation of creative works which are not borne out in the case studies. Building on the insights from the four case studies, the thesis argues that the best approach to applying the joint authorship test to works of collective authorship is one that is inclusive (of all those who have made a more than de minimis contribution of creative choices to the protected expression) and contextual (in that it takes the context of creativity into account). In coming to this conclusion the thesis also offers broader lessons about the nature of authorship and the ongoing relevance of copyright law standards for the regulation of collaborative creativity.

Legal systems around the world vary widely in how they deal with the assignment of receivables. This legal variety makes it difficult for financiers to conduct their international receivables financing business. This thesis suggests an International Registration System for the Assignment and Security Interest of Receivables (‘IRSAR’) and proposes a model international convention for the IRSAR (‘proposed IRSAR Convention’), which could help financiers to overcome the obstacles they currently encounter. Under the proposed IRSAR Convention, the international assignment of receivables would be regulated by a unified legal system with respect to priority and perfection. The IRSAR would facilitate international project financing. Furthermore, the IRSAR would enable companies to raise finance from greater ranges of investors around the world through international receivables financing and to dispose of non-performing loans more easily. The proposed IRSAR Convention would succeed the UN Convention on the Assignment of Receivables in International Trade in the attempt of establishing a registration system for international assignments of receivables. The proposed IRSAR Convention confines its scope of application by defining the assignor (or the security provider), inventing the concept of ‘Vehicle for the International Registration System’ (‘VIRS’). The proposed IRSAR Convention applies where the assignor or security provider is a VIRS. An assignment of a receivable where the assignor is a VIRS and a security interest in a receivable where the security provider is a VIRS could be registered in the IRSAR. Under the proposed IRSAR Convention, priority of assignments of and security interests in receivables is determined by the order of registration in the IRSAR. The proposed IRSAR Convention would be a receivables version of the Cape Town Convention. With respect to the contents and effect of registration, it would prescribe a notice-filing system along the lines of that adopted in the UCC Article 9. With respect to the operation of the registration, it would adopt an automatic online registration system operating 24 hours a day, 365 days a year like the International Registry under the Cape Town Convention.

The aim of the diploma thesis is the analysis of legal instruments regarding the restriction of the ownership of real property arising out of the protection of nature and landscape. This diploma thesis is divided into 7 chapters including the introduction and the conclusion. The second chapter deals with the constitutional origin of the respective legal institutes. The third chapter deals with the conflict of the fundamental rights. The fourth chapter provides for the fundamental institutes, their basic components, and their legal basis in private and public law. The fifth chapter is concerned with the particular restrictions of the ownership of real property as stipulated by relevant legal regulations. This chapter is divided into the analysis of the act no. 114/1992 Coll. in general and the analysis of the general and special protection of nature and Natura 2000 and provides examples of the respective legal institutes. The sixth chapter defines the restriction of the ownership rights arising out of other acts. The conclusion is concerned with the comparison of the aforementioned legal institutes and the evaluation of the particular features thereof. The conclusion also provides proposals for prospective changes in the relevant legislation.

The purpose of my thesis is to provide general requirements for the registrability of trademarks and to analyse particular grounds for refusal of registration of trademarks according to czech law. The thesis is composed of four main chapters, each of them dealing with different aspects of czech trademark law. Chapter One outlines brief history of the very first legislation dealing with trademarks and their registrability until recent days. Chapter Two is introductory and defines basic terminology used in the thesis and also presents categories of trademarks. The chapter is subdivided into five parts. Part One deals wiht national trademarks, part Two focuses on international trademarks, part Three deals with well-known trademarks. The last part presents the Nice clasification established by the Nice Agreement. Chapter Three provides an outline of all absolute grounds for refusal of registration of trademarks under the czech law. The chapter concentrates on particular absolute grounds; the chapter is subdivided into ten parts, each of them dealing with one particular absolute ground. The chapter also illustrates the approach to decision-making by trial courts and practice of competent authorities. Chapter Four concentrates on all relative grounds for refusal of registration of trademarks under czech...