This article is presented in five parts. The first part consists of this introduction, which is followed by a discussion of the Canadian legal position in part two. The cases of R v Collins1 and R v Stillman,2 as well as the impact of these cases on the Canadian admissibility framework, will be explored. In addition, the adapted fair trial requirement developed and applied by the Ontario Court of Appeal in R v Grant,3 and the revised admissibility framework recently introduced by the Supreme Court of Canada in the appeal of R v Grant,4 will be analysed. Part three discusses the jurisprudence of s 35(5) of South Africa’s Constitution. An alternative admissibility framework is suggested in part four, followed by a short conclusion in part five. The Constitution of the Republic of South Africa, 1996,5 provides that South African courts may, when interpreting the Bill of Rights, seek guidance from comparable foreign law jurisdictions in order to give meaning to its provisions.6 The South African Supreme Court of Appeal and the High Courts,7 as well as scholarly writers,8 have indicated that the provisions contained in s 24(2) of the Canadian Charter of Rights and Freedoms9 and s 35(5) of the Bill of Rights are strikingly similar.10 This could be one of the reasons why the South African courts have opted to be guided by their Canadian counterparts.11 The Canadian admissibility frameworks, established to determine whether unconstitutionally obtained evidence should be received or excluded, have for decades been the subject of rigorous scholarly criticism. As a result thereof, and the subsequent reaction by the Ontario Court of Appeal, the admissibility framework has recently been revised by the Supreme Court of Canada. Given that s 35(5) of the South African Constitution is modelled on s 24(2) of the Canadian Charter, the manner in which the courts of that country have grappled with the interpretation of s 24(2) is of particular importance to South Africa.12

M.A. / This study focuses on the concept of an open society, a concept that was given currency by the philosopher Karl Popper in his 1945 book, The Open Society and its Enemies. Popper provides five imperatives for an open society: state power must be limited and strictly controlled; the aim of public policy must be the reduction of misery; massive reconstruction must be foresworn in favour of incremental changes, guided by critical feedback from the citizenry; institutions to enable free criticism are essential to an open society; and individualism and diversity must be cherished as the source of a richer and more valuable critique. This study examines the South African Constitution to evaluate the extent to which it, as an institution, contributes to the attainment of a Popperian open society, and concludes that it provides the enabling conditions to attain four out of five of Popper’s imperatives. Where it does not succeed is in providing for incremental social change: on the contrary, it enshrines a vision of a radically reconstructed society. Ironically, that vision seems to have been renounced by the state, which has instead adopted an austere economic policy designed to win global approval. This policy has elicited widespread criticism, as have other government policies. Government response to criticism has been far from the positive acceptance envisaged by Popper, ranging from dismissal to outrage to blatant attempts to silence criticism through regulation or legislation. In the case of criticism from the courts (in the form of judgments against government agencies) response has frequently been non-compliance with court orders, even with Constitutional Court orders. The Constitutional Court represents one of the institutional checks and balances on the state demanded by Popper, having considerable powers of judicial review to guard against the abuse of state power. An evaluation of the Court’s contribution towards the attainment of an open society suggests that initially the Court was somewhat reticent about exerting its powers, to the extent of being taxed by some with undue deference towards government. In recent years, however, the Court has shown signs of increased assertiveness, finding for government on fewer occasions and attaching structural interdicts to its orders. It nonetheless requires something more, if the Constitutional Court is to make the contribution it should towards attaining an open society, and this study concurs with a suggestion that the Court undertake public interest litigation, as other apex courts have done. The open society envisaged by the Constitution (and by Popper) requires that the Constitutional Court be vigilant for abuses of state power, provide an ongoing critique of public policy through its judgments, and even accept its share of responsibility for realising the reconstructive vision portrayed in the Constitution, through actively identifying, investigating and addressing injustices in our society.

The Advertising Standards Authority‘s system of self-regulation compares favourably with that of similar bodies in many other countries. Its advertising code regulates, amongst others, offensive advertising. This study investigates whether the limitations imposed by the South African advertising code accord with the provisions of the South African Constitution. In order to examine this critically, an interpretative, comparative review of the literature on this topic was conducted. Offensive advertising is a form of freedom of expression that is protected in South Africa. It is accepted as such in constitutional jurisprudence, both in South Africa and internationally. The advertising code may therefore only limit advertising freedom insofar as the limitations of s 36 of the Constitution of the Republic of South Africa, 1996 permit it. In terms of s 36, the South Africa advertising code needs to constitute a ‘law of general application’. As a contract between advertisers and the Advertising Standards Authority, and also based on the advertising code’s legal underpinning in broadcast advertising, the code is ‘law’. Moreover, as a published document based on international advertising principles, the code is furthermore also accessible; and it has general application. However, the vague terminology employed in the offensive advertising clause means that the clause constitutes an unenforceable contract term. It is not sufficiently clear and precise to qualify as ‘law of general application’, with the exception of the provisions on gender offence, the offensive advertising provisions are not formulated with sufficient precision so as to enable advertisers to reasonably ascertain prior to publication whether an advertisement is likely to be acceptable. The Constitutional Court in Islamic Unity Convention v Independent Broadcasting Authority NO 2002 (4) SA 294; 2002 (5) BCLR 433 para 30 highlighted the categories of offensive material that can be expected to be regulated in a democratic society, if fairness and a diversity of views representative of South African society is to be achieved, namely material that is (1) indecent, obscene or offensive to public morals; (2) offensive to religious convictions; or (3) offensive to feelings of sections of the population . The study concludes that in respect of sex, nudity, violence, and language, advertising material should be limited to appropriate media placement in that the South African advertising code should aim to protect children and unwilling adult recipients from offence occasioned by encountering such material, rather than preventing moral deterioration. The study also concludes that when dealing with religious convictions, race, sexual orientation, ethnic or social origin, age, disability, and culture, the prohibitions on advertising should mirror the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000), dealing with hate speech: If a category of offence is to be banned, such offence cannot be merely shocking but must result in hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act is a direct result of the requirement in the Constitution, 1996 that national legislation must be enacted to prevent or prohibit unfair discrimination. Finally, the study proposes amended provisions relating to offensive advertising for the South African advertising code: Firstly, it is proposes that an advertiser‘s freedom of expression should be curtailed in a manner that ensures fairness and a diversity of views broadly representing a democratic South African society. Secondly, the proposal aims to ensure that offensive advertising provisions accord with the value system of the Constitution, 1996, when collectively weighing up the requirements and factors provided for in s 36 of the Constitution, 1996, together with all other relevant factors. / Thesis (LLD)--University of Pretoria, 2012. / Mercantile Law / unrestricted

Republic of South Africa underwent through very significant changes. The discriminatory laws and provisions were cancelled, there were free elections maintained. The government is trying to empower black people. Black Economic Empowerment (BEE) is governmental strategy which seeks to diminish differences between white and so called historically disadvantaged inhabitants. This master thesis provides broad survey of this strategy and analyses its current results.

Public, Constitutional, & International / LLD

1 Abstract The thesis whose subject is Comparation of legislation of National Parks in the Czech Republic and the Republic of South Africa deals In detail with the legislation of national parks, especially in comparison of the Czech legal system and the legal system of South Africa, but also with the international law and European Union law. The aim is mainly to analyze in detail the individual instruments and institutions that govern the environmental law in relation to national parks and to acquaint the readers with scope of nature conversation in Europe and Africa. The thesis also serves and explains the basic terms related to the territorial regulation of national parks and protected areas (prior to national parks) on both continents. National parks are the most important type of protected area; they are declare by the state and in the scope of nature conversation national parks are the most crucial mean of conversation. The regulation of national parks is embodied in the laws of individual states; in the Czech Republic it is the Act on the protection of nature and landscape of 1992 while in South Africa it is the Protected Areas Act of 2003. In general, however, the national legislation is very influenced by international treaties and by the international organizations whose influence is still growing....

This thesis examines the notion of developmental local government within the context of the implementation of a local economic development policy and the interrelationship that exists between national development frameworks underpinning growth and development objectives developed at the national and provincial spheres of government and the local economic development policy executed at the local sphere of government. Chapter One provides a historical overview of the Integrated Development Plan and of Local Economic Development in the Republic of South Africa. The concept of a developmental state within the context of the Republic of South Africa and also the evolution of the system of local government are examined. Chapter Two discusses research methodology within the context of the discipline of public administration and provides a distinction between qualitative and quantitative research and the rationale behind the adoption of a qualitative research approach for the purpose of this study. An overview of Public Administration and Public Policy literature is broadly discussed in Chapter Three. The theoretical framework of developmental local government and its characteristics is discussed in the same chapter. The trajectory of national economic development policies, namely, the Reconstruction and Development Programme, the Growth, Employment and Redistribution Policy, Accelerated Shared Growth Initiative for South Africa and New Growth Path and the interrelationship with the LED policy objectives are examined in Chapter Four. The analysis of the case study underpinning this study and presentation of research findings flowing from a field research undertaken in the Emakhazeni local municipality situated in the Mpumalanga province of the Republic of South Africa are discussed in Chapter Five. An LED policy implementation model suited for developmental local government is also discussed in this chapter. The overall deductions, recommendations, limitations of this study, and suggestions for further research are presented in Chapter Six. / Thesis (DAdmin)--University of Pretoria, 2014. / gm2014 / School of Public Management and Administration / unrestricted

Magister Legum - LLM

Philosophiae Doctor - PhD / The general aim of this study was to explore the extent to which the Grade 11 LO curriculum prepares learners for active citizenship in a democratic South Africa. The main research question that the study addresses is: To what extent does the Grade 11 LO curriculum prepare learners for active citizenship in a democratic South Africa? The main objective of the study is to explore the extent to which the Grade 11 LO curriculum prepares learners for active citizenship in a democracy in the South African context. Even though democratic structures and participation forms a small component of the broader topic of active citizenship in the Grade 11 LO curriculum, the study examines the public participation initiatives of Parliament, as a democratic structure with the intention to increase active citizenship in a democratic South Africa. The theoretical framework of this study considers Paulo Freire's educational theory in the context of critical theory and models of public participation in preparation for active citizenship. As such, the literature was used in order to come to an understanding of concepts relating to active citizenship in a democracy, the concepts, namely, "education for "public participation‟, "citizenship‟, "democracy‟, "inclusivity‟ and "human rights‟. The study adopted a mainly qualitative research approach to explore the extent to which the Grade 11 LO curriculum prepares learners for active citizenship in a democracy. In order to gain an in-depth understanding of learners' perceptions, a case study method was employed and data collection techniques included questionnaires and focus group interviews. The sample in this study comprised 461 Grade 12 learners, who completed the Grade 11 LO curriculum during 2012, and seven LO educators from five selected schools in Metro South Education District in the Western Cape. Even though the total number of participating educators was seven, four completed the questionnaires and four participated in the focus group interviews. The data collection process encompassed three phases. Phase one included a literature review and document study. Phase two included the administration of questionnaires and phase three included the facilitation of focus group interviews. Thematic and document analyses were applied in order to undertake a detailed examination of documents and interviews.

This thesis examines the interpretation of section 35(5) of the Constitution of the Republic of South Africa, 1996, which empowers the courts to exclude unconstitutionally obtained evidence in criminal trials. A generous and purposive interpretation should be at the heart of the admissibility assessment. This work explores the threshold requirements and the substantive phase of the interpretation of section 35(5). Given that this provision is manifestly modelled on the terms contained in section 24(2) of the Canadian Charter, the manner in which the courts of that country have grappled with the interpretation of section 24(2) has been accorded particular importance. As a preliminary issue, the courts must consider whether the threshold requirements of section 35(5) have been satisfied. It is concluded that the courts of South Africa have interpreted the threshold requirements of section 35(5) in a broad manner, thereby making it less onerous to satisfy, compared to the threshold requirements contained in section 24(2) The substantive phase of the admissibility assessment should consist of two legs that must be clearly separated from each other, for the reason that the assessment in each leg of the analysis serve to enhance different societal interests. The public interest in protecting the rights of the accused should be the central consideration during the first leg, while the societal interest in convicting the guilty should be contemplated during the second leg. The first leg of the analysis is concerned with the effect that admission of the evidence would have on the fairness of the trial. It is suggested that the trial fairness requirement should be determined by means of a conscription analysis. The prosecution may rely on the ‘discoverability’ doctrine or on the ‘independent source’ exception. The admission of evidence based on these exceptions would not render the trial unfair. Such an infringement would, accordingly, not add to the seriousness of the violation. Conversely, although admission would tend to render the trial unfair, the evidence should not ‘automatically’ be excluded. However, such an infringement should be regarded as a serious violation, since section 35(5) was designed to prevent unfair trials. The second leg is focused on the effect that either the admission or exclusion of the evidence would have on the integrity of the criminal justice system. It is concluded that the ‘current mood’ of society should not be determinative of the admissibility assessment. The following overall admissibility framework is recommended: Despite the fact that admission would render the trial unfair, the courts should be allowed to consider police ‘good faith’ and other factors ordinarily considered during the second leg, in order to make an admissibility ruling. Differently put, a balancing exercise should be performed, in which the factors identified in the seminal case of Collins are considered and weighed at the end of the analysis. More importantly, the seriousness of the violation should be a significant factor in the overall admissibility assessment, since judicial condonation of serious infringements would generally impact negatively on the repute of the criminal justice system. / Thesis (LLD)--University of Pretoria, 2010. / Centre for Human Rights / unrestricted