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A critical appraisal of Africa's response to the world's first permanent International Criminal Court.Du Plessis, Max. January 2011 (has links)
Abstract not available. / Thesis (LL.D.)-University of KwaZulu-Natal, Durban, 2011.
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A History of the Natal Provincial Division of the Supreme Court of South Africa during the Judge Presidency of Richard Feetham (1930-1939) : with particular reference to the bench and bar.De Beer, Marina. January 1988 (has links)
Richard Feetham was Judge President of the Natal Provincial Division from 1 May 1930 to 18 July 1939. He succeeded Dove Wilson who was an able but not a very learned or dynamic Judge President. Thus, at the time of his appointment the Natal Court and its judgments were treated with little respect by the other provincial divisions. Feetham JP, unlike his predecessor, was not only a scholar with a towering intellect but a man endowed with outstanding leadership qualities. He was thus ideally
suited to bring about a change for the better in the status of the Natal Court. He did this by taking a dynamic lead and presided over and delivered a high proportion of the courts' judgments. He also set his brethren an excellent example by the high standard he set for himself and his court and which they emulated. This thesis thus also covers the careers of these puisne and acting puisne judges and their contribution towards the better administration of justice in Natal. In 1930 there existed in Natal a disinct system of dual practice with a de facto Bar. This system had been a vexed question in the minds of Natal lawyers for two decades but when Feetham JP was confronted with it he immediately addressed the controversial issue and brought about the necessary reforms to divide the legal profession and bring Natal into line with the rest of South Africa. This reform raised the quality of pleading and manner in which the law was presented. It also provided the Natal Bench with able personnel for the future from within Natal. Accordingly this thesis also assesses the careers of the main legal practitioners of that period and their contribution towards the development of the administration of justice in Natal. In less than ten years Feetham JP thus transformed the Natal Provincial Division from being weak and ineffectual to a position where it became a division respected for its Bench, judgments and legal profession. During the course of time history has confirmed the overall significance of Richard Feetham's Judge Presidency. / Thesis (LL.M.)-University of Natal, Durban, 1988.
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The shortcomings of the common law and the Companies Act 61 of 1973 in regulating executive remuneration in South Africa : is the code of corporate practices and conduct the answer for listed companies?Polaki, Angelina Tlotliso. January 2003 (has links)
King II articulated in an open manner, issues of disclosure, transparency, comparator
ren1lmeration packages and a robust approach to the paYment of con1pensation in relation to
poorly performing directors. While directors owe fiduciary duties to the company
(shareholders present and future), by paying themselves huge packages, they do no longer act
in the best interests of the con1pany because awarding themselves exorbitant packages may
frustrate their duty to maximise shareholder value. The solution is that their interests be linked
to those of shareholders by requiring that their pay be linked to their performance. With the
advent of corporate governance reforms, other stakeholder interests have to be taken
cognisance of by directors in corporate decision Inaking. As such, a huge gap between the
salaries of rank and file employees and those of executive directors is seen as a conscious
move to ignore the interests of legitimate stakeholders when there is no compelling reason to
do so. To try and align the interest of shareholders and directors, it is felt that more emphasis
has to be placed on actively engaging shareholders and employees in the determination of
executive remuneration.
It is subn1itted that pay that is not linked to performance is a breach of fiduciary duties, in
particular, duty to avoid conflict of interest. However, our common law and Companies Act
61 of 1973 fail imn1ensely to address concerns relating to excessive remuneration pay. In
particular, the business judgment nl1e precludes minority shareholders taking action on the
basis of wrongs committed against the company by virtue of pay not being linked to
performance. Neither has the introduction of corporate governance reforms impacted heavily
on setting executive remuneration. They have not proved effective in curbing fat cat pay. It is
acknowledged that these reforms have ~rought about a profound impact on attitudes in the
corporate environment. However, numerous deficiencies, particularly in the context of South
Africa can be identified.
This thesis serves as a means of establishing whether fron1 a legal perspective, following
recent reforms, the negative impact of exorbitant remuneration pay is of such a serious nature
as to warrant more stringent regulation in one form or the other. South Africa should consider
revan1ping and tightening current legislation, which as submitted is lacking in a number of
respects. As a strategy to eradicate exorbitant pay, it is submitted that directors fiduciary
duties have to be revised and legislated in order to successfully establish directors wrongdoing. It is felt that legislative enactment may be made stronger by the fact that it may
have stronger and sharper teeth and hence able to reach where self-regulated codes are weak. / Thesis (LL.M.)-University of Natal, Durban, 2003.
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A critical analysis of the role of disclosure in strengthening corporate governance and accountability.Bagwandeen, Lynelle. January 2010 (has links)
This dissertation critically analyses the role of disclosure in strengthening corporate
governance and accountability to determine whether a prescriptive system of disclosure is
of greater efficacy than a voluntary regime. The research undertaken has been done on a
qualitative and theory building basis. The purpose of the study is to examine how current
and future legal reform can curb corporate governance shortcomings and contribute to a
new more dependable mode of corporate governance.
This requires a comparative analysis of the South African and English models which are
voluntary ('comply or explain') regimes compared to the prescriptive American model of
corporate governance ('comply or else'). The foundational basis, definition and
jurisdictional evolution of corporate governance is examined and analysed to ascertain
the role of disclosure in relation to good governance. To facilitate this investigation a
critical review of the legislative framework and reforms enacted locally (and offshore
where applicable) is also undertaken.
Disclosure as a concept is probed in terms of both a mandatory disclosure and voluntary
disclosure regime to determine the more prudent mode of dissemination and how it
impacts the efficacy of corporate governance and accountability.
To ensure a holistic VIew of the role of disclosure is comprehensively critiqued its
influence on corporate social responsibility is embarked upon. It is contextualized against
the shareholder (contractarian) theory of governance versus that of the stakeholder
(communitarian) theory of governance. This will involve a study of the competing
requirements of disclosure in terms of these two theories and its impact on securing
accountability.
The tenuous relationship between shareholders and directors is considered to determine
whether corporate governance regimes safeguard shareholder rights and how these
measures contribute to strengthening governance. The codified role of directors in enhancing disclosure to shareholders is also undertaken. To exatrune the interplay
between these concepts corporate governance failures are dissected to determine the
shortcomings of disclosure practice.
The recommendation of this dissertation is that a mandatory disclosure regime is of
greater efficacy in strengthening corporate governance and accountability but to remedy
recurring corporate governance shortcomings a disclosure regime that is holistic and
principles based is required. It should also be supported by a dedicated and empowered
regulatory system with sufficient penal measures to curb fraudulent behaviour but
sufficient flexibility so as not to curtail industrial fortitude. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2010.
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Investor protection in empowerment schemes of arrangements and joint ventures.Joko, Michael Kiyong Kimbi. January 2001 (has links)
In this paper, I have attempted to highlight the problems that face investors, both black and white, in South Africa, especially in the light of the effects of the new legislation promulgated after apartheid was abolished. The legislation with which I am most concerned, is the legislation which was promulgated to promote the entry of blacks into the South African economy. In chapter one, I deal with the concept of empowerment from the constitutional view point and the problem of its definition. I also discuss out the relevant new legislation that in my argument I believe impacts on corporate activity and then deal with the distinction between an "arrangement" within its ordinary meaning in corporate law distinct from that as defined in the in the Companies Act 61 of 1973. In chapter two, I deal with the dangers facing an individual investor, the benefits of
incorporation, the problem of the existence of money revolving schemes, and the effects of a lack of education amongst previously disadvantaged investors. In chapter three, I deal with joint ventures, their benefits, the effect of the Competition Act 81 of 1998 on joint and potential areas of conflict between black and white partners. Certain aspects of fraudulent and negligent conduct of directors are examined. In Chapter four, I deal with the methods of executing mergers and acquisition in relation to empowerment companies, their advantages and disadvantages, certain procedures necessary for the protection of investors like due diligence inquiries, the protection offered by the present company legislation and the common law and criticisms of the courts to protect shareholders. I look at a case study and special considerations in mergers and acquisitions. In chapter five, I look at the problem of capital in empowerment companies, the various methods that have been used to raise capital, and the loopholes in the law that affect some of these arrangements. I have focused specifically on special purpose vehicles and buyouts. In chapter six, I deal with the impact of government action and government policy on
empowerment and I have compared this with what has happened in other countries. I conclude by recommending that the Black Empowerment Commission should be given teeth to take corrective measure towards empowerment. / Thesis (LL.M.)-University of Natal, Durban, 2001.
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The ICC's jurisdictional limitations and the impunity for war crimes in the DRC : a plea for the establishment of a special criminal tribunal.Ntamulenga, Christian Kabati. 28 October 2013 (has links)
The cruelty and scope of the widespread criminality of humans in the world, which was a feature of the past century, was fuelled by scientific progress, egoism and humanity's power of destruction. The criminal consequences of the many imperialistic, hegemonic and barbarous wars in that century were immeasurable in terms of violations of human rights.
Notwithstanding the emergence of international criminal justice through the experience of the International Criminal Military Tribunal of Nuremberg and Tokyo and later the ad hoc International Criminal Tribunal for former Yugoslavia and Rwanda, globally, impunity for egregious crimes continues.
The establishment of the International Criminal Court (ICC) at the end of the 20th century was saluted as a major step forward in the evolution of international criminal justice. While previous tribunals were ad hoc, the ICC is permanent and has large territorial jurisdiction. This raises hope among the many Congolese victims of the first African World War, who view the ICC as a paradigm change that will put a stop to impunity for crimes against humanity and the crimes of genocide and war.
In the Democratic Republic of the Congo (DRC), the past decades have been marked by instability and horrible armed conflicts (1996-97 and 1998-2003) which left several million people dead, and which were marked by gross war crimes. The negative consequences of those atrocities persist until today. While the ICC initiated the prosecution of some war criminals in 2004, most crimes committed before 2002 remain unpunished, because the ICC's jurisdiction is limited to after that time.
It is therefore imperative to examine other mechanisms to deal with impunity for various grave crimes, including war crimes, perpetrated between 1996 and 2002. Thus the aim of this research is to contribute to the fight against impunity for crimes in the DRC by examining how other modes of jurisdiction such as the principle of universality can be applied, and to assess the need for the establishment of a specific tribunal for the DRC.
Considering the inability and incapacity of the Congolese judicial apparatus, this study concludes by recommending the establishment of a Special Criminal Tribunal which can put an end to impunity for serious crimes committed in the DRC. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.
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An evaluation of the regulation of industrial conflict with special reference to the motor industry.Reddy, P. C. January 2003 (has links)
No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 2003.
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An examination of the university as a disciplinary institution in terms of Michel Foucault's postmodernist concept of disciplinary power, with specific reference to the nature of power relations between students and faculty.Angumuthoo, Maryanne. January 2001 (has links)
No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 2001.
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Critical labour law imperatives that impact on the issues of equity, restructuring, incorporation and mergers that are currently taking place in the higher education sector.Sithole, Dumisani Lancelot Roosevelt. January 2001 (has links)
This dissertation focuses on the forces that are bringing about changes in the
employment relationships in the higher education sector. Labour law regulates
the employment relationships. This dissertation also seeks to determine the
extent to which the forces that are external to the parties to the employment
relationship determine the legal environment within which the parties can
exercise their rights and obligations.
The important factor that is taken into account in this regard is the constitution
of the country which is the supreme law of the land. The fundamental rights
that are enshrined in the constitution must be recognised and respected by
labour law and consequently by the parties to the employment relationships.
The constitution provides that when interpreting any legislation, every court,
tribunal or forum must promote the spirit, purpose and objects of the Bill of
Rights.
This dissertation is confined to the public higher education system. The
constitution also stipulates that the power to pass legislation that regulates
tertiary education is given to the national government exclusively. It is for that
reason that the Higher Education Act has been amended to give the Minister
the power to bring about the desired changes.
The National Plan for Higher Education that was introduced by the Minister of
Education in March 2001 is the basis of the discussion of the issues of equity,
restructuring, incorporations and mergers that are currently taking place in the
higher education sector in this dissertation. This is a force that is external to the
parties and is brought about by policy considerations.
The analysis of the issue of equity therefore takes into account the right to
equality as buttressed by affirmative provisions of the constitution of the country
and the legislation that has been enacted to outlaw discrimination at the
workplace and to promote equality of opportunity is considered. The enforceability of the equity provisions of the National Plan for Higher Education
are analysed in this context.
Labour law also determines the respective rights and obligations of the parties
when it comes to restructuring that is taking place in the higher education
sector. Labour law acknowledges that the operational requirements of
employers may compel them to restructure their operations. This may lead to a
loss of jobs. The principles of labour law and labour legislation that regulate
these phenomena are analysed.
The National Plan for Higher Education seeks to bring about a change in the
landscape of the higher education system in this country. It proposes mergers
and incorporations of certain institutions of higher education into. other such
institutions. Labour law principles and legislation regulate how these
phenomena can be effected. Common law recognises an employment
relationship between a particular employer and a particular employee and does
not provide for the notion of transferring the employment relationship to a new
employer. This dissertation analyses the applicable provisions of labour law
when this transfer of contract happens in the higher education sector.
Our labour law is itself in a state of flux, not only because the relevant labour
legislation is new, but also because that "new" labour legislation is in the
process of being amended. This aspect has been compounded by the fact that
the Labour Appeal Court has given different interpretations to certain provisions
of the legislation, leading to further amendment of the legislation. The relevant
amendments relate to dismissals based on operational requirements of the
employer and the transfer of contracts of employment from the "old" employer to
the "new" employer.
This dissertation aims to highlight the measures that the role players must take
to ensure that the implementation of the directives contained in the National
Plan for Higher Education, among others, does not fall foul of our labour law. / Thesis (LL.M.)-University of Natal, Durban, 2001.
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A study on the grounds upon which the commission for conciliation, mediation and arbitration awards are reviewed by the labour courts with specific reference to challenges posed to arbitrators.Motswakhumo, Ediretse Donald. January 2003 (has links)
No abstract available. / Thesis (LL.M.-Law)-University of Natal, Durban, 2003.
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