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The effectiveness of environmental law in Malawi : an analysis of the principal legal tools for achieving environmental protection with emphasis on the criminal sanction.Kalima, Justin Moses. January 2006 (has links)
The magnitude of environmental degradation in Malawi suggests that environmental law
has not been effective. While inadequate enforcement of the law is certainly a significant
cause of ineffectiveness, it is demonstrated that the other cause is the current normative
state of the law. Malawi uses three traditional legal tools for achieving environmental
protection: the criminal sanction, administrative measures and civil measures. An
examination of the current environmental laws reveals that the criminal sanction is the
primary tool prescribed in Malawian environmental circles.
From a stage when the criminal sanction was used to reconcile the parties to a dispute and
to discipline the recalcitrant party, the criminal sanction has evolved to the current stage
when its purposes are retributive and utilitarian. It is contended that in the context of
environmental protection the most acceptable aspect of retribution is just deserts,
especially the notion of proportionality. With regard to utilitarianism, deterrence,
prevention and reinforcement may in various degrees be regarded as legitimate purposes
of the criminal sanction in environmental law.
In the current stage of the criminal sanction its operation is affected greatly by the Bill of
Rights in Malawi's Constitution. It is suggested that in dealing with various aspects of the
criminal sanction vis-a-vis the Constitution, Malawian courts should lean towards saving
them from unconstitutionality in the interest of environmental protection.
An analysis of Malawi's environmental statutes shows that some of the criminal offences
have not been articulated clearly and others conflict with constitutional provisions in a
non-defensible way. The criminal sanction is also shown to have weaknesses. When
these weaknesses are weighed against the criminal sanction's strengths, it is clear that the
criminal sanction has more weaknesses than strengths. This scenario has led many
scholars to conclude that criminal sanctions are not appropriate for crimes of all sorts.
They suggest that criminal sanctions should be reserved for serious offences and that other measures should be used for less serious offences. While this suggestion certainly
has merit especially in respect of First World and Second World countries, the practical
realities in Malawi as a Third World country urge a different - but related - approach.
These practical realities relate to the availability of alternatives to the criminal sanction in
Malawi. An analysis of the alternatives reveals that most of them are not viable
alternatives to the criminal sanction in Malawi at present and so criminal sanctions
inevitably remain the primary tool for achieving environmental protection. In these
circumstances, it is suggested that certain aspects of the criminal sanction should be
attended to in order to improve its performance. In this connection, it is suggested that
corporate criminal liability must be reformed in order to make available additional bases
upon which corporate offenders may be made answerable for their activities. Sentencing
must also be reformed in order to prescribe more effective punishments. Further, the use
of strict criminal liability should be discouraged: instead there should be wider use of
negligence as the fault element and wider use of the due diligence defence. In addition,
vicarious criminal liability may be retained as long as an element of fault on the part of
an employer or principal is introduced or the defence of due diligence is made available
to the employer or principal. Alternatively, vicarious criminal liability may be abrogated
in favour of primary criminal liability. Finally, it is suggested that provision be made for
the award of costs after successful prosecution of environmental offenders and for the
payment of fines to government departments or public bodies responsible for
environmental protection. / Thesis (LL.D.)-Universityof KwaZulu-Natal, Durban, 2006.
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The concept of nuisance in English law : a study of the origins and historical development of the concept of nuisance from its earliest beginnings to the end of the nineteenth centuryMilton, John Robert Landrey. January 1978 (has links)
Abstract not available / Thesis (LL.D.) - University of Natal, Pietermaritzburg, 1978
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Abandonment in marine insurance law : an historical comparative study.Marnewick, Christiaan Georg. January 1996 (has links)
This study follows upon an LLM thesis in which the
writer submitted that South African marine insurance law
should be allowed to develop by way of a codification
process which co-ordinates research of the principles of
Roman-Dutch law .
Abandonment is defined as a special remedy
available to the assured under a marine insurance policy in
in special circumstances. It is related to the indemnity
principle and subrogation and , operates as a method of
transferring real rights. The reasons for the research are
examined and the historical-comparative method is proposed
as the appropriate rearch method.
An historical review of the origins and early
history of indemnity insurance is undertaken . It reveals
that abandonment is an original institution of marine
insurance which has been imported into to the legal systems
of the countries of western Europe and England .
After recounting the historical developments in
customary and statute law pertaining to abandonment spanning
the period from the birth of marine insurance to the end of
the eighteenth century, the principles of abandonment
currently applicable in Dutch, German, French, English and
American law are analyzed and compared in order to determine
what the basic rules of abandonment are. In this process
certain common principles of abandonment are identified and
arranged into a set of basic rules.
The theoretical implications of abandonment and
its relationship with the indemnity principle and
subrogation are considered in order to arrive at some
conclusions with regard to the origins of abandonment, its
functions as a servant of the indemnity principle and its
links with economic loss as a species of indemnifiable loss.
It is concluded that the purpose of abandonment is to
compensate for a loss which is wholly or partially economic
in nature. Abandonment as a means of transferring real
rights without formal delivery of the abandoned things is
discussed against criticism by others that abandonment does
not have the effect of transferring real rights in South
African law.
The development of abandonment principles in South
Africa after 1652 is investigated against the background of
the original customary law which applied in Europe, the
local ordonnances which were promulgated in the towns of
Holland between 1563 and 1744, the writings of the most
important Roman-Dutch authors and developments in South
African statute and case law. This allows the basic
principles of abandonment in the law of the countries used
for comparison and arrived at by the historical-comparative
method to be compared to the principles of abandonment in
the Roman-Dutch law of the seventeenth and eighteenth
centuries and to current South African law. It is concluded
that, whilst there are unimportant differences, the South
African common law recognizes the same basic rules of
abandonment as the classic Roman-Dutch law, recent Dutch law
and current German, French, English and American law. In the-
discussion of South African case law it is pointed out with
reference to Roman- butch, English, French and Dutch
authorities that an injustice has been done in the case of
the 'Morning Star' .
Three general recommendations are made with regard
to the future development of South African law, namely that
total loss should be recognized as a separate category of
loss, that it is unnecessary to import the concept of a
constructive total loss into South African law, and that the
insurer should be allowed to decline receiving transfer of
ownership of the abandoned ship or goods. The principles of
abandonment are also stated on three different bases,
allowing the South African legislature to choose its own
model, namely:
those which apply in South African law as the
inherited Roman-Dutch principles;
those which apply in English law, firstly as they
applied prior to codification in 1906 and secondly as they
now apply under the Marine Insurance Act 1906; and lastly
those which the writer recommends should be taken
up in a proposed South African marine insurance act .
Case law is stated as at 31 December 1995. In the
case of English law the wealth of material has made it
necesary for the author to use his own discretion on the
question whether any particular case or work was worthy of
a mention . / Thesis (LL.D.)-University of Natal, Durban, 1996.
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Impact of disasters on public health : an investigation of disaster management requirements in the rural municipality of Ndwedwe.Sikhakhane, Gabisile Hilderguard. January 2008 (has links)
No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2008.
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The principles underlying the sentencing of juvenile offenders.Singh, Annette. January 2000 (has links)
No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Westville, 2000.
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Preventive law.Robertson, Michael Keith. January 1981 (has links)
No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 1981.
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The applicability of the law of war in internal conflict : a selective study of the Geneva Conventions of 1949 and additional protocols of 1977.Borrowdale, Andrew. January 1980 (has links)
No abstract available. / Thesis (LLM.)-University of Natal, Pietermaritzburg, 1980.
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Diplomatic immunity : an argument for re-evaluation.Goossens, Savio. January 2011 (has links)
Diplomacy is an ancient concept known to man as far back as the ancient Greeks and Romans. Through the passing of time the concept of diplomacy has continuously been developed. The evolution of this concept has followed with the great civilisations of this world. Most notable are the advancements in Europe from the medieval era to the industrial revolution. Diplomacy was first codified in 1815 by the Congress of Vienna. The 1961 Vienna Convention currently regulates the immunities and privileges of the modern diplomat. The immunities range from official acts to the conducting of personal affairs. These immunities protect the diplomat from the foreign state. The extent of these immunities has led to a range of abusive behaviour resulting in controversy.
This dissertation sets out a brief historic overview of diplomacy and theories dealing with the discourse of immunities in light of the Vienna Convention on Diplomatic Relations of 1961. A closer look is taken on the privileges and immunities a diplomat enjoys in his personal capacity, his property and his family. Furthermore the development of diplomacy in England and South Africa are discussed. Lastly the Vienna Convention sets out a number of remedies that are able to deter diplomatic agents from abusing their station. However, such remedies alone have proved to be inefficient without the immunities being limited in order to make diplomats accountable for their misconduct.
In light of the severity of misconduct by diplomats, a suggestion has been offered for such privileges to be curtailed in order for diplomats to be held accountable for severe crimes committed. As it stands now, diplomats escape liability for heinous crimes such as rape, murder and human trafficking. It is submitted that a re-evaluation of the principles is required. / Thesis (LL.M.)-University of KwaZulu-Natal, Pietermaritzburg, 2011.
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Comparative analysis of the defence of provocation.Pather, Sivikalay. January 2000 (has links)
No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 2000.
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The electronic monitoring of employees in the workplace.Subramanien, Darren Cavell. January 2010 (has links)
No abstract available / Thesis - University of KwaZulu-Natal, Pietermaritzburg, 2010.
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