If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LL. M.

Première partie : La pluralité des juridictions : une pluralité assumée et organiséeTitre I : La composition de l’appareil de justiceTitre II : L’organisation des juridictions dans l’optique d’un ordre juridictionnelDeuxième partie : Le juge comorien face aux impératifs de justiceTitre I : Le respect des fondements de la justiceTitre II : Le juge comorien à la jonction d’un pluralisme désordonné / Part 1: The plurality of courts: an assumed and organized pluralityTitle I: The composition of the judicial systemTitle II: The organisation of the courts from the perspective of a jurisdictional systemPart 2: The Comorian judge facing justice dutiesTitle I: The observations of the foundation of justiceTitle II: The Comorian judge in junction of a disordered pluralism

Développées par la Cour de Justice, les invocabilités des directives européennes définissent les conditions permettant aux personnes juridiques de se prévaloir d'une directive dans leurs rapports juridiques. La Cour de Justice a réussi à introduire ces invocabilités dans les ordres juridiques nationaux, notamment en Italie et en France, en s'appuyant, d'une part, sur des éléments déjà existants dans les ordres juridiques des États membres, tels que la technique de l'interprétation conforme et le principe de la responsabilité de la puissance publique, en les faisant évoluer dans le sens européen. D'autre part, la Cour a aussi créé des outils nouveaux et, finalement, révolutionnaires, tels que les invocabilités de substitution et d'exclusion de la norme nationale incompatible avec une directive européenne. La mise en oeuvre de ces invocabilités a eu des répercussions importantes sur le rôle des juridictions nationales, qui ont vu l'ensemble de leurs missions s'étendre. La sphère juridique des particuliers a également été influencée, de façon imprévisible et, parfois, préjudiciable. / Developed by the European Court of Justice, the invocability of EU directives defines the conditions allowing legal subjects to exercise the rights conferred by a directive in their legal relationships. The ECJ has managed to introduce different types of invocability into the member States national legal orders, and notably in Italy and France, by, on the one hand using some pre-existing elements of the national legal orders, such as consistent interpretation and the principle of State liability, and making them evolve in a European way. And, on the other hand the ECJ has also created new and, finally, revolutionary tools, such as invocability of substitution and invocability of exclusion of the national law incompatible with a EU directive. The implementation of these different types of invocability has had a deep impact on the role of national courts, who have seen their mandate extended. The legal sphere of legal subjects had also been influenced, in unpredictable and sometimes detrimental ways.

La tesi té per objecte l'estudi de les decisions d'una jurisdicció constitucional en les quals, com a alternativa a la declaració d'invalidesa, es condiciona la constitucionalitat dels preceptes legals que s'examinen a una determinada interpretació fixada pel Tribunal Constitucional. La investigació analitza els fonaments d'aquesta tècnica i els exemples del seu us en dret comparat. L'autor rebutja una aproximació a aquest fenomen de caràcter tipològic (que ha estat l'habitual en les aportacions fins ara publicades sobre la matèria) per endinsar-se a analitzar les raons materials i institucionals que porten a una jurisdicció constitucional a dictar aquesta mena de pronunciaments. / La tesis tiene por objeto el estudio de aquellas decisiones de una jurisdicción constitucional en las que, como alternativa a la declaración de invalidez, la constitucionalidad de los preceptos legales examinados quedan condicionados a una interpretación establecida por el propio Tribunal Constitucional. La investigación analiza los fundamentos de dicha técnica y los ejemplos de su uso en derecho comparado. El autor rechaza una aproximación a este fenómeno de carácter tipológico (habitual en las aportaciones hasta la fecha publicadas) y se centra en el análisis de las razones materiales e institucionales que impulsan a la jurisdicción constitucional a dictar esta especie de pronunciamientos. / The dissertation examines those constitutional court decisions in which the controlled statute is not set aside but constitutional under some conditions fixed by the Constitutional Court. The research analyzes the foundations of these decisions and their use by the Constitutional Courts in comparative law. The author rejects an approach of such decisions based upon their classification and argues for a position concerning the institutional and material background in which these decisions are invoked.

科学研究費補助金 研究種目:基盤研究(B) 課題番号:17330001 研究代表者:杉浦 一孝 研究期間:2005-2007年度

From a jurisprudential analysis of several judgments of the Constitutional Court, the author tries to show a new perspective based on a dynamic vision of a Social State and Constitutional Law, which ones require a fundamental presence of judges in the deliberation of court cases related to the prohibition on collective bargaining in the case of public employment, in order to show the scope of axiological protection that labor law should take in situations such as public employment and lack of funds in order to achieve equality between public and private employment , thus avoiding overt discrimination. / A partir de un análisis jurisprudencial de diversas sentencias del Tribunal Constitucional, el autor intenta presentar una perspectiva basada en el cambio de visión de un Estado Social y Constitucional de Derecho que exige una presencia fundamental de los jueces en la deliberación de los casos referentes a la prohibición de la negociación colectiva en el caso del empleo público, para con ello demostrar el ámbito de protección axiológica que debe asumir el derecho laboral frente a situaciones como el empleo público y la falta de presupuesto para lograr una igualdad entre los empleos públicos y privados, evitando así, una discriminación manifiesta.

Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope of judicial authority as encompassing the resolution of any dispute that can be resolved by the application of law. The courts in South Africa have developed several justiciability canons that restrain when courts may adjudicate disputes, such as standing, mootness, ripeness, and the prevention of advisory opinions. These justiciability canons emanate from constitutional considerations such as respect for separation of powers and the proper role and scope of judicial review in a constitutional democracy. This study focuses on another justiciability canon - the political question doctrine. This doctrine arises from the principle of separation of powers and, in the main, provides that certain questions of constitutional law are allocated to the discretion of the elected branches of government for resolution. As a result, such questions are non-justiciable and require the judiciary to abstain from deciding them because not doing so intrudes into the functions of the elected branches of government. The underlying theme is that such questions must find resolution in the political process. Through a comparative lens, the study examines the origins and current application of the political question doctrine in selected countries with a view to obtain lessons therefrom. It examines the origins of the doctrine, by placing particular emphasis on the early application of the doctrine by the US Supreme Court. The study also examines the modern application of the doctrine in the constitutional jurisprudence of several countries, including Ghana, Uganda and Nigeria. It advances the view that while the doctrine exists in the South African jurisprudence, the Constitutional Court should articulate and develop it into a clear doctrine taking into account lessons from those countries. The study offers some recommendations in this regard. The study submits that the political question doctrine is an appropriate legal mechanism through which the South African judiciary can address the recent problem of the proliferation of cases brought to the courts that raise non-justiciable political questions and threaten to delegitimize the role of the courts in a democracy. / Public, Constitutional and International Law / LL. D.

Section 33(1)(b) is fraught with borrowed provisions. The end-product marries German and Canadian features. The failure of the German Constitutional Courts to interpret the "essential content of a right" precipitated the adopted infant's bumpy landing in South Africa. That the sibling still lacks identity is evidenced by our Constitutional Court's evasive and superficial treatment of the clause. Section 33(1)(a) - proportionality prong enables judges to justify their neglect of Section 33(1)(b). The opinion is expressed that Section 33(1){b) demands interpretation but to date it has been shrouded in vagueness. After all without demarcating boundaries with sufficient precision and highlighting where the State may not tread the State may trespass. Alternatively the limitable nature of human rights could become a myth as Section 33(1)(b) could be transformed into an insurmountable hurdle for the State, rendering every right absolute in practice. A workable conceptual framework proposes an inverted, porous and value imbibing solution. / Law / LL.M.

At the dawn of democratic rule in the period 1994–1998, South Africa concluded 15 bilateral investment treaties (BITs), mostly with European nations. Some of these treaties were concluded before the Constitution of 1996. The country has since concluded a total of 47 BITs, with the majority not in effect as they were not ratified per the required constitutional processes. The policy decision to enter into BITs was taken by the African National Congress (ANC) government, led by the late former state president Nelson Mandela. The BITs were seen as an important guarantee to attract foreign investment into the country. The aim was to provide added assurance that foreign investments were safe in a democratic South Africa after many years of international isolation and sanctions. The conventional wisdom at the time was that BITs would increase foreign investor appetite to invest and the country would experience rising levels of foreign direct investment (FDI) as a result. This would facilitate economic growth and the transition of the country into the global economy. South Africa concluded BITs with seven of the top ten investor countries. In October 2013 the South African government cancelled a number of BITs with these European countries invested in South Africa. These countries – namely Belgium, Luxembourg, Spain, Switzerland, Germany and the Netherlands – complained of lack of consultation by the South Africans. On 1 November 2013 the Minister of Trade and Industry published, in Government Gazette No 36995, the Promotion and Protection of Investment Bill (PPIB or Investments Bill) as the proposed primary legislative instrument for the protection of foreign investments. This created much uncertainty among many European nations as well as in the United States of America (US), who were concerned about the motivation for cancelling bilateral treaties in favour of domestic legislation. BITs had been a part of the policy instruments regulating foreign investments in the country for over 20 years. Globally these treaties have been used to regulate foreign investments in a number of areas, and to provide protection to investments such as full protection and security, guaranteed pre-establishment rights, ease of repatriation of funds, most-favoured nation, fair and equitable treatment, national treatment and efficient dispute settlement mechanisms, among other provisions. In most cases international arbitration via the International Centre for the Settlement of Investment Disputes (ICSID) and other international arbitral mediums has been a standard provision in the treaties. This has allowed foreign investors to bypass host countries’ legal systems. The latter is believed to be a significant inducement for foreign investors, guaranteeing that should a dispute arise, or if an expropriation occurs, the investor could institute an international arbitral process against the host government. International arbitration is preferred by foreign investors for the reason that, in some cases, domestic courts may lack independence from the state, and may make partial rulings that do not protect investors. Furthermore, international arbitration processes are more efficient and produce rulings faster than domestic courts, which are usually burdened with bureaucratic procedures and limited resources. In cases where delay exacerbates injury, prompt resolution of disputes is preferable. This study evaluates the Investments Bill and the rationale applied by the government of South Africa to cancel BITs with major trade and investment partners in favour of this legislation. The thesis focuses on the Investments Bill, in light of the objective provided by the Department of Trade and Industry (DTI) for its enactment to law. The Investments Bill is subjected to a constitutional analysis to determine its compliance therewith. Comparisons are also made between the Investments Bill provisions and the prevailing international law principles on foreign investments. The Investments Bill is then critically evaluated against emerging trends on FDI regulation on the African continent to determine its congruence or lack thereof with best practice recommendations at regional economic community (REC) and African Union (AU) level. The thesis concludes with a set of policy recommendations to the DTI on how to improve South African policies related to the regulation of foreign investments taking into account the national imperative as well as Southern African Development Community (SADC) and other broader African continental objectives of harmonisation of FDI regulation, including the Tripartite Free Trade Area (FTA) implementation. The timing of this thesis is significant for South Africa. It adds to various deliberations that are taking place as the Investments Bill is set to makes its way through the legislative approval processes in 2015. The Bill has been met with opposition from some segments of society. Others have expressed support – including several state departments, the ANC, the South African Communist Party (SACP) and other political formations. The summary of findings contained in the thesis will be presented to the DTI to influence policy directions of the state in terms of foreign investment regulations. Should the Bill be enacted, the Minister of Trade and Industry is required to promulgate the dispute resolution mechanism that will govern investment disputes. The findings of this study will be important to the determination of how such dispute resolution mechanisms may function. Furthermore, in 2010 Cabinet instructed the DTI to develop a model new-generation BIT Template to be utilised by South Africa, should a compelling reason arise to enter into bilateral agreements. The research results will assist policy-makers to develop policies that are consistent with and align with the overarching Africa strategy that has been heavily promoted by South Africa. The country faces a number of challenges, particularly those related to low economic growth, high levels of poverty, unemployment and record levels of inequality. The gap between the rich and poor, in terms of the Gini coefficient, was 0,67 based on the World Bank Development Research Group Report of 2010. It is reported as one of the highest in the world and is believed to have worsened since the dawn of democracy. / Public, Constitutional and International Law / LL. D. (Public, Constitutional and International Law)

In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles. As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised. The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.