PhD, Faculty of Commerce, Law and Management, University of the Witwatersrand, 2006

This study is an application of the political theory of Michael Oakeshott aimed at enhancing understanding of the South African state. Oakeshott posits that the modern state is comprised of two separate modes of association, namely societas and universitas. Universitas refers to an association to attain a specific substantive purpose, while societas is an association based on common submission to the recognition of, and adherence to, prescribed formal laws. Each tends towards self‐destruction when the character of a given state is reflected by that mode of association exclusively. The presence of both modes of association in tension with each other produces a stable state. The South African state has been shown to reflect a dominantly universitas character, but, since a monopolar state cannot exist, it follows that the societas understanding of the state must also be present. In this study, the Constitution of the Republic of South Africa, Act 108 of 1996, is assessed to determine whether it reflects a societas understanding of the state. Two formal conditions for a societas are identified in the work of Oakeshott, namely a system of rules and norms, and the recognition of this system as being authoritative. These formal conditions are employed as a benchmark against which to test the character of the South African Constitution. / Dissertation (MPhil)--University of Pretoria, 2014. / tm2015 / Philosophy / MPhil / Unrestricted

Doctor Legum - LLD / South African Muslims constitute a religious minority group that is subject to dual legal systems. In the public sphere they are bound by South African law whereas in the private sphere are duty bound in terms of their religion to follow Islamic law. Muslims are required, in terms of their religion, to ensure that their estates devolve in terms of the Islamic law of succession. A son inherits double the share of a daughter in terms of the Islamic law of intestate succession. This unequal distribution of shares has led to a premise that the Islamic law of intestate succession discriminates against females. The South African Constitution strongly promotes the right to equality and non-discrimination. There is therefore a serious need to investigate the fairness of the Islamic law of intestate succession within the context of South African law. This is in the interest of a religious minority group who have been in South Africa since 1654.

Magister Philosophiae - MPhil / The South African negotiations process, in the true spirit of classical liberalism, emphasised juridical continuity, legality, and gradual political change. But in spite of this and the fact that South Africa’s constitution-making process is acclaimed as the most successful negotiated revolution, it is generally recognised that there is incongruity between the promise and hope brought about by South Africa’s constitution-making process and the political and social crises that ensued after the advent of constitutional democracy in the country. I argue in this analysis that the South African constitutional discourse must undergo a fundamental shift by abandoning the normative regulation of the constituent power of the people in order to allow for the people to truly govern. The acknowledgement of the possibility of the unregulated exercise of constituent power through people-driven initiatives can mitigate the current malaise facing South Africa’s constitutional democracy.

Masters in Public Administration - MPA / Local authorities in the Western Cape have all initiated affirmative action policies to address past discrimination and ethnic inequalities, however ineffectual they may have been up to now. The debate arises; what kind of programme should be adopted to address issues such as discrimination, economic and social upliftment for disadvantaged groups and individuals? Oostenberg local authority organisation in the Western Cape is a functionary in the socio-economic rejuvenation of the poverty stricken, formerly deprived and most oppressed people of the Cape Metropolitan area. Transformation has not heralded the implementation of developmental strategies or the initiation of programmes, to address the huge inequalities that exist between black and white communities. This study argues that Affirmative Action should address holistic transformation of disadvantaged groups and individuals, to utilise the development potential of society to it's maximurn. The racial inequalities that pervade all aspects of life in South Africa are major factors contributing to racial hatred and civil disobedience. Apartheid has been formally eradicated from the South African Constitution, however, the vast differences between the opulent white minority and the increasing black majority is a reason for concern. Legislation has been promulgated to ensure that all private and public sector organisation adhere to, and commit themselves to the elimination of unfair discrimination in the workplace, however no amount of legislation can assure peace and harmony in a society filled with hatred. Affirmative action has been recognised as an agency to eradicate inequalities in income and status and to develop the human potential and ability. Those who benefit from affirmative action policies should be defined in terms of objective socio-economic principles, such as living conditions, education and income levels, to ensure that programmes target the genuinely disadvantaged. The growing feeling of discontent in the Western Cape is cause for concern and this is fuelled by the incorrect implementation of affirmative action. This study will utilise statistics, records, documents and interviews to obtain a detailed and descriptive analysis of strategies and policies thus far implemented in the Oostenberg Municipality. It is also the contention of this study that this organisation has applied limited policies and strategies to overcome the corrosive effects of discrimination.

Thesis (PhD)--Stellenbosch University, 2015. / ENGLISH ABSTRACT: South Africa’s transition to democracy has been hailed as exemplary in the field of conflict resolution and constitution-making. The negotiated settlement was expected to serve as a consensual constitutional framework boding well for the newly democratic regime, but by 2014 evidence was accumulating of an emerging dissensus on the South African Constitution. The literature on the South African transition does not anticipate this emerging constitutional dissensus, or address the possibility that the constitution meant different things to different stakeholders. While there was widespread endorsement of the ratification of the constitution, an apparent divergence has emerged about its meaning and what is stands for. Many studies addressed the process of constitutional negotiations and the outcome thereof, but few examine the meaning that the original negotiators invested into this outcome. The study aimed to address whether this dissensus was present during the negotiating process (1990 - 1996), and whether the negotiators’ agreement on the formal text of the constitution obscures fundamentally diverging interpretations. The study is in the form of a qualitative, descriptive case study. This study created a novel conceptual framework within which to classify diverse interpretations. Perceptions of negotiated compromises in deeply divided societies were conceptualised in the form of Constitutional Contracts, Social Contracts and Benchmark Agreements. Original negotiators’ views and opinions were analysed in order to identify dispositions reconcilable with each of the concepts identified. This framework proved significantly helpful in identifying whether the views of the negotiators were divergent – on several levels, differences between negotiators during the negotiating period came to the fore. It became evident from the findings that there were indeed present among the ranks of the negotiators of the South African Constitution diverging interpretations of this outcome. It became clear that certain interpretations were more easily categorised than others: while being able to locate the views of some negotiators within the concepts of Constitutional Contract or Social Contract, identifying those views congruent with the Benchmark Agreement proved more difficult. Also, some negotiators’ views can be located within one, two or all of the categories. It became evident that while negotiators may be categorised within all three concepts of the framework, their opinions are not necessarily specific to the indicators of one single concept. This study brought significant insight into several concepts, including the Social Contract in a changing society. The Social Contract is identifiable within a system that fosters process over institutions, with specific focus on the working of the electoral system. The Social Contract is vested in the political culture as opposed to in the written text, but the written text does facilitate these types of processes by entrenching mechanisms for ongoing negotiation and revision. However, while some of these mechanisms exist within the Constitution, it does not mean that they are effectively used. Characteristics associated with the Social Contract, such as flexibility and an inclusive process, tend to be associated with longer lasting constitutions. The question remains whether South Africans should be actively seeking to build a Social Contract, and whether a Constitutional Contract can evolve into a Social Contract. / AFRIKAANSE OPSOMMING: Suid-Afrika se oorgang na demokrasie word beskou as ‘n uitnemende voorbeeld in die veld van konflikoplossing en die skryf van grondwette. Daar is verwag dat die onderhandelde skikking sal dien as ‘n ooreengekome grondwetlike raamwerk vir die nuwe demokratiese regime, maar teen 2014 het bewyse begin akkumuleer van ‘n opkomende dissensus oor die grondwet. Die literatuur oor die Suid-Afrikaanse oorgang antisipeer nie hierdie ontluikende grondwetlike dissensus nie, en spreek nie die moontlikheid aan dat die grondwet verskillende dinge vir verskillende rolspelers beteken nie. Alhoewel daar wydverspreide onderskrywing van die bekragtiging van die grondwet was, het daar ‘n klaarblyklike verdeeldheid na vore gekom oor wat die grondwet beteken, en waarvoor dit staan. Die proses van onderhandeling, sowel as die uitkoms in die formaat van die grondwet, is deur baie studies aangespreek, maar min ondersoek die betekenis wat die oorspronklike onderhandelaars in die uitkoms belê het. Dié studie is daarop gerig om ondersoek of hierdie onderliggende dissensus reeds tydens die onderhandelingsproses (1990 – 1996) teenwoordig was, en of die onderhandelaars se ooreenkoms oor die formele teks fundamenteel uiteenlopende interpretasies daarvan verberg. Die studie is in die vorm van 'n kwalitatiewe, beskrywende gevallestudie. ‘n Nuwe konseptuele raamwerk is ontwikkel waarbinne die diversiteit van opinie hieroor geklassifiseer kan word. Persepsies van onderhandelde kompromieë in diep verdeelde samelewings is gekonseptualiseer in die vorm van Grondwetlike Kontrakte, Sosiale Kontrakte en Maatstaf Ooreenkomste. Oorpsronklike onderhandelaars se standpunte en opinies is geanaliseer om gesindhede versoenbaar met elk van die konsepte te identifiseer. Hierdie raamwerk was nuttig om te identifiseer of die menings van die onderhandelaars uiteenlopend was. Verskille op verskeie vlakke het tussen die onderhandelaars tydens die onderhandelingstydperk na vore gekom. Dit is duidelik dat daar wel uiteenlopende interpretasies van hierdie uitkoms teenwoordig was binne die geledere van die onderhandelaars. Sekere interpretasies is makliker geklassifiseer as ander: die menings van sommige onderhandelaars kan as kongruent met die Grondwetlike Kontrak of die Sosiale Kontrak geidentifiseer word, maar dit was moeiliker om sienings ooreenstemmend met die Maatstaf Ooreenkoms te identifiseer. Sekere onderhandelaars se standpunte kan ook in een, twee of al drie kategorieë geplaas word. Dit het duidelik geword dat terwyl sekere onderhandelaars se opvattings binne al drie konsepte van die raamwerk geklassifiseer kan word, hul menings nie noodwendig spesifiek binne die aanwysers van 'n enkele konsep val nie. Hierdie studie het beduidende insig in verskeie konsepte gebied, insluitend die Sosiale Kontrak in 'n veranderende samelewing. Die Sosiale Kontrak is identifiseerbaar binne 'n stelsel wat die belangrikheid van proses oor instellings beklemtoon. Die Sosiale Kontrak berus in politieke kultuur, maar die geskrewe gondwetlike reëls fasiliteer hierdie tipe van prosesse deur die vestiging van meganismes vir voortgesette onderhandeling en hersiening. Hierdie verskynsel is tipies meer duidelik sienbaar in die werking van verskillende kiesstelsels. Alhoewel hierdie meganismes kan bestaan binne ‘n grondwet, beteken dit nie dat hulle doeltreffend gebruik word nie. Eienskappe wat verband hou met die Sosiale Kontrak, soos buigsaamheid en 'n inklusiewe proses, is geneig om verband te hou met 'n duursame en standhoudende grondwet. Die vraag bly staan of Suid-Afrikaners aktief op soek moet wees na die bou van ‘n Sosiale Kontrak, en of 'n Konstitusionele Kontrak kan ontwikkel om ‘n Sosiale Kontrak te vorm.

Magister Legum - LLM

In 2015, the Vienna University of Economics and Business (WU) and the African Tax Institute at the University of Pretoria launched a project to identify the links between corruption, money laundering and tax crimes in Africa. The project promotes the concepts of good tax governance and the importance to economic development of a tax system that is transparent and free of corruption. The project explores how law enforcement agencies and tax authorities can best cooperate to counter corruption and bribery. The project was initially aimed at three focus countries, namely, Ghana, Nigeria and South Africa, but soon was extended to other African countries. This is a joint initiative with the United Nations Office on Drugs and Crime (UNODC) and is also supported by the World Bank. This book brings together a series of background papers prepared for the Conference on Inter-Agency Co-operation and Good Tax Governance in Africa held at the University of Pretoria in July 2016. After a rigorous double peer-review process, the papers were revised by the authors. We express our gratitude to and acknowledge the services of the following peer reviewers: Tom Balco; Carika Fritz; Leon Gerber; Willem Jacobs; Benjamin Kujinga; Thabo Legwaila; Annet Oguttu; Dirk Scholtz; David Solomon; and Xeniya Yeroshenko. Finally, we express our sincere gratitude to all the research and administrative assistants who contributed to the Good Tax Governance in Africa Project. This book pays tribute to their efforts. Jeffrey Owens, Rick McDonell, Riël Franzsen and Jude Amos (Vienna and Pretoria, November 2017)

Thesis (MPA. (Public Administration)) -- University of Limpopo, 2015 / Local governments are obliged by the Constitution of South Africa to deliver services and development to local communities in their demarcated areas. This constitutional mandate comes at a time where South African government entered into a new regime of government indebted to fix the ill of the Apartheid systems. The government of the post-1994 had to eradicate the inequality offspring of segregation policies of the past that resulted in most of the black communities without access to decent local government services and systems. The provision of services by local government became constrained by skills gaps and distribution across a wider community that had to be included in cascading services. The question of capacity in local government formed a critical part of the transformation of government in South Africa. Never the less local government has been swept by service delivery protest since the 2004 with a sharp increase from 2008 till current. Further pressures that indicate capacity challenges are with the inability of municipalities to deal healthy with financial resource. This challenged is confirmed by the steady poor reports by the auditor general year-in-year-out. These challenges exist where there is a concentrated financing reservations and advocacy of capacity building training programmes, which in turn shows to be failing to address capacity challenges in local government. The study investigated the effects of capacity building training programmes on municipal practitioners in selected municipalities within the Capricorn District Municipality, Limpopo province. The focus of the study is to establish the implication of capacity building training programmes on the capacity of officials to discharge their official duties in the municipalities. The study also dealt with the need for a methodological model that could be used to develop capacity building training programmes. Competency-Based Training was studied in pursuit for recommendation as a model for capacity building in local government. The study was grounded within the boundaries of the systems thinking with bias to the complex systems thinking. To fulfil the purpose of the study data was collected through qualitative and quantitative methods. Analyses were made using the Statistical Package for Social Science. The findings of the study revealed that though there are positive effects of capacity building training programmes in local government there is much to be done especial the alignment of capacity with the strategic positioning of the participating municipalities.

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2013 / This mini-dissertation relates to the mode of ownership of the country’s natural, mineral and petroleum resources, their contribution to the economy, the Growth Domestic Income and the overall role played by these resources to better the lives of the ordinary citizens and their impact on the socio economic circumstances in general. In terms of the previous mining legislation in South Africa, mineral rights were held privately and in some instances by the state. Following the 1994 democratic breakthrough, the Mineral and Petroleum resources Development Act now vests the ownership of mineral rights in the state as the custodian and owner on behalf of the people of South Africa and the mineral resources are the common heritage of the people. The vesting of the mineral rights does not however interfere with the right to private ownership of property which is expressly guaranteed by the property clause in the constitution. The new Mining legislative regime with specific and particular reference to the Mineral and Petroleum Resources Development Act and National Environmental Management Act are precisely paced to ensure optimal exploitation of natural resources while promoting sustainable development.