This dissertation critically examines the common law caveat subscriptor rule and argues against the strict application of the rule in the context of ‘contracts of necessity’ (which is defined in the research paper). I will begin by explaining what exactly the caveat subscriptor rule entails and how it functions within the realm of mistake in contract as a species of the reliance theory which the South African law of contract endorses. I will then proceed to outline the narrow grounds recognized by the courts to date upon which one may escape the working of the caveat subscriptor rule. In section II of the paper I will briefly discuss the rise of the consumer protection movement and consider the extent to which the Consumer Protection Act now provides added protection to the unwitting signatory against the strict application of the rule. In section III I will critically examine the underlying presumptions of the caveat subscriptor rule which purport to justify the existence and application of the rule itself. I will then proceed to illustrate that while the assumptions underlying the caveat subscriptor rule may have been accurate and relevant in the past, these assumptions are no longer in keeping with the modern era of mass marketing characterized by the widespread use of standard-form contracts and consumer non-readership, which is reflected in recent judgments dealing with unread contract terms. In section IV I will examine the modern reality of consumer non-readership caused by various innate psychological factors and behavioural biases, particularly in the context of contracts of necessity. In section V I show that a change in judicial attitude towards unread contract terms and increased fairness towards the signatory is warranted not only in light of modern consumer behavior, but also in light of the courts constitutional mandate to develop the common law in accordance with section 39 (2) of the Bill of Rights as well as its underlying values. In section VI will propose a new basis for escaping the strict application of the rule grounded in public policy and will conclude by suggesting some practical methods for reform under the common law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

No abstract available. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2008.

Trafficking in persons in general and in children in particular is a phenomenon that affects each and every country in the world. No African country is immune from trafficking, the quasi-totality of them are simultaneously countries of origin, transit and destination of trafficked children. They are trafficked internally or trans-nationally for all types of exploitations, such as sexual exploitation, labour exploitation, and removal of body parts. In spite ofjoint efforts by the international community to eradicate trafficking in children, research reveals that this modem form of slavery is a phenomenon on the rise instead of decreasing. The situation is more alarming on the African continent where most countries have not yet found appropriate solutions to the problem. Child trafficking is fought through prevention and criminalization. The former entails measures such as awareness raising and the alleviation of factors that make children vulnerable to trafficking and the demand that fosters all forms of exploitation of children. Criminalization measures tress the enactment of comprehensive anti-trafficking legislation, investigation and prosecution of traffickers and protection of child victims of trafficking. This dissertation evaluates the best solutions to prevent and eradicate child trafficking. It seeks to recommend practices which are effective for African countries by taking into consideration the continent's realities, such as resource limitations and underdevelopment. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2009.

Children's right to participate in judicial and administrative matters that affect them is perhaps the most frequently overlooked children's right, globally. This research was a descriptive study of what exists with regard to children's participation, at the Office of the Family Advocate, when parents divorce. The methods of data collection used included a content analysis (quantitative method) a focus group interview (qualitative method) and review of the literature and legislation. The content analysis involved analyzing the data of forty case files involving disputed cases, according to a content analysis schedule. The focus group interview was conducted with family advocates and family counselors and focused on various factors that facilitate or impede children's participation at the enquiry. The data obtained was analyzed manually and presented in the form of pie charts, tables, discussions and quotes. From the content analysis the researcher found that most children had definite views regarding their future care. One of the factors that hinder children's participation at the enquiry is the fact that not all enquiries are conducted using the team approach. The research also indicates that the adversarial nature of divorce proceedings impact negatively on children's participation and a more conciliatory approach would prove more child-centered. The focus group interview indicates that the professionals involved have positive attitudes towards children's views and participation in the enquiry. Children's expressed wishes are considered in conjunction with other factors such as the bond between parent and child, and the suitability of the parent. The focus group participants made various suggestions with regard to ensuring a more child centered approach regarding children's participation. The researcher presented the major findings, together with recommendations for future research at the end of the study. / Thesis (M.A.)-University of KwaZulu-Natal, Durban, 2004.

Societies have, since time immemorial, traded real goods and services for expectations of goods and services in some future. These expectations have been associated with tangible and, lately, intangible property - which is generally called money. From the crude quantity theory of money, the purchasing power of a monetary unit is given as 1/ P = T/(Mv). P is the price of the traded goods and services T, M is the total money supply and its turnover rate is v. The total money supply M is dominated by bank credit. In the South African law (and elsewhere) the judicial recognition given to bank credit (1) as money seems to have happened as an unintended side-effect to accepting cheques as delivery vehicles in a cash transfer without any tangible money moving from the transferor to the transferee. In payment of money, the law of property and the law of contract overlap and become inseparable. Both the English and South African laws define payment as performance of a preceding duty. The Supreme Court of Appeal, in the Vereins- und Westbank case seems to have declared an abstract transfer of ownership of money to be payment even though no preceding duty to pay was found. The profit of a financial investment is called interest and is calculated from a simple or compound interest formula. Despite medieval legal, theological and ethical objections, neither is illegal in the South African positive law. The last remnant of the medieval protection of a guilty debtor (often the ruler) at the expense of an innocent creditor is the in duplum rule. This is particularly obnoxious during modern rampant inflation that was unknown and could not be predicted when only metallistic money was in use. The influence of the in duplum rule is being limited by recent restrictive judgments in South Africa and in Zimbabwe. In South Africa, the Government has a constitutional duty to ensure that its subjects are not deprived of property. Specifically, the Constitution prescribes in Section 224(1) that the South African Reserve Bank must 'protect the value of the currency'. It is shown that the recent Reserve Bank policies, unless urgently modified, are in conflict with the publicly promised inflation rate of no greater than 6%. The exchange rates depend fundamentally on the price levels of the traded or tradable goods and services in the respective economies. This leads to the concept of purchasing power parity, which is most accurately reflected in the relationship between interest rates in different states and their relative foreign exchange depreciation rates. It is submitted that the South African Exchange Control Regulations have outlived their usefulness (if ever they had any) and are unconstitutional - at least in so far as they interfere with the South African Reserve Bank's obligation to pursue its primary object 'independently and without fear'. In the main, the South African Courts have applied restrictive interpretation to the Exchange Control Regulations and they have justifiably ignored the public international law obligation of the Republic to recognise the Exchange Control Regulations of fellow IMF members extraterritorially. (1) To money related claims on banks - see the body of the thesis for the two-creditor-two-debtor legal aspects in the 'bank credit'. / Thesis (LL.D)-University of Durban-Westville, 2002.

No abstract available. / Thesis (LL.D.)-University of Natal, Durban, 1981.

The Constitution of the Republic of South Africa, Act 200 of 1993 which operated as the interim constitution of the Republic introduced a new legal order predicated on constitutionalism and constitutional supremacy. Within it was entrenched a justiciable Bill of Rights that guaranteed the enforcement and protection of the fundamental rights of the individuals of the state. Notionally and traditionally bills of rights have been conceived as a mechanism for the protection and enforcement of fundamental human rights against the state, the abuse of state authority and sate power. Such an application has been typified as the vertical application of the bill of rights . During the drafting process of the Interim Constitution, the Technical Committees commissioned by the Multi-Party Negotiating Process for that purpose were preoccupied with the question as to whether the South African Bill of Rights should apply in the private sphere between private persons acting inter se; such an application being typified as the horizontal application. The result was an ambiguous text. The question of whether the Bill of Rights was indeed capable of a horizontal application was intensely debated before the Constitutional Court of South Africa in Du Plessis And Others v De Klerk And Another 1996 (3) SA 850. And in an equally intense judgment the majority of the Court concluded that the Bill of Rights was not in general capable of a direct horizontal application. Although influenced by a strenuous textual analysis, there were other considerations too that influenced the Court's decision. One of the most important of these was that the operation of a bill of rights in the private sphere would be contrary to the notion of a constitutional state and that it would make the law vague and uncertain. However, the very same Constitutional Court a few months later in In Re: Certification of the Constitution of the Republic of South Africa, 1996, 1996 (10) BCLR 1253 (CC) certified that Section 8 (2) of Chapter 3 unequivocally provided for the horizontal application of the Bill of Rights. This dissertation examines the paradigms within which the Bill of Rights operates horizontally and analyzes the apprehensions expressed in Du Plessis v De Klerk within the context of these paradigms. / Thesis (LL.M.)-University of Natal, Durban, 1998.

No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 1983.

This work seeks to critically examine the right to legal representation in the South African criminal justice system under a future constitutional dispensation. Extensive attention has been given to how the right to legal representation has been interpreted under the common law. Reference has been made to the united States 6f America's approach to the due process and equal protection clauses in shaping the substantive and procedural content of the right to counsel in criminal proceedings. The importance of legal representation is examined during the pre-trial, trial and sentencing stages of criminal proceedings. A brief comparative examination has been made of the right to legal representation in other foreign jurisdictions, and how the courts have dealt with indigent accused persons facing criminal charges. Proposals from different quarters in South Africa have been discussed in the hope that these proposals may still find a place in the country's final constitution. Finally, the practical implications of a qualified right to free legal representation as provided by the Interim South African Constitution is discussed. Suggestions are also made concerning the approach to be adopted by the courts in the face of judicial precedents which would be in conflict with a new value system under a Bill of Rights after 27 April 1994. / Thesis (LL.M.)-University of Natal, Durban, 1994.

No abstract available. / Thesis (LL.M.)-University of Durban-Westville, 2002.