This dissertation presents an analytical literature study regarding the relationship between the International Criminal Court and the proposed International Criminal Law Section of the African Court. The realisation of the International Criminal Law Section of the African Court will place itself and the International Criminal Court within the same jurisdictional sphere with regard to the adjudication of international customary law crimes with respect to its African member states. It is noteworthy to point out that this complexity is fraught with political turmoil regarding Africa, the International Criminal Court and the United Nations Security Council. This complex issue has been acutely recognised by numerous academics and law experts. Neither the Rome Statute nor the Protocol makes any reference towards each other, leaving its respective African member states with the daunting and ambiguous task of navigating through this complexity in isolation. This dissertation aims to investigate, analyse and ultimately offer a plausible solution to this immediate concern. In order to accomplish the aforementioned, this study will firstly investigate and evaluate both constitutional treaties of both international courts, respectively. The issue pertaining to the endowment of immunity will also be separately evaluated, considering the conflicting approaches followed by both judicial institutions. Ultimately, all previous sections will be analysed in order to recommend amendments to the Protocol to align itself with international law and settled international practice. A complementarity scheme will be introduced on the basis of the progressive interpretation of positive complementarity to harmonise both courts within the same jurisdictional sphere. Lastly, this dissertation will be concluded by remarks recapitalising the main findings. / LLM, North-West University, Potchefstroom Campus, 2015

Text in English / The substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution. / Constitutional, International & Indigenous Law / LL.D.

Historically South African law has been dominated by Western law. Indigenous law and the jural postulates which underpin that law are insufficiently accommodated in the South African legal order. The Western component of the official legal system is regarded as institutionally and politically superior and is as such perceived to be the dominant system. In contrast indigenous law is regarded as a servient system. The monopolistic control of the legal order by the Western section of the population resulted in the creation of a legal order primarily suited to its own needs. The fact that few of the values of indigenous law are reflected in the official legal system and the fact that there is a measure of conflict and tension between the fundamental precepts of indigenous law and those of Western law, gave rise to a crisis of legitimacy of the official legal system in South Africa. This in turn lead to the emergence of unofficial alternative structures for the administration of justice. Indigenous law should receive full recognition and enjoy the same status as Western law. To accomplish this, legislative measures which entrench a distorted indigenous law, limit the application of indigenous law, or affect its status in the South African legal order, should be revoked. Even in a multicultural society such as that of South Africa, there is a common nucleus of core values that are shared by the whole society. But different cultures have different conceptions of these basic values and their role in legal, political and social ordering. The Bill of Rights should give due recognition to the postulates which underscore both Western and indigenous law. This should be done by providing that the values the Bill entrenches, must be interpreted in their proper cultural perspective where circumstances so demand. But this will be possible only if the level of knowledge of indigenous law and its fundamental precepts is drastically improved. / LL.D

The definition of terrorism in international law The subject of this graduation thesis is to explore problem of defining terrorism in international law. Although it is very broad topic, the thesis has attempted to explore most of the questions this issue has offered. First of all, it examines reasones why define terrorism in international law. Further this study provides information about perception of the term terrorism in the past depending on the political and social conditions and about how the terrorist attacks influenced the effort to find the definition of terrorism. The thesis pays big attention to regional treaty in which terrorism is defined and uses it as a comparison basis for finding the elements of the definition, since regional international treaty law has achieved the biggest success in this area. However, in the last two decades successes have achieved on universal level, especially by the adoption of the International Convention for the Suppression of Financing of Terrorism, which is the first universal agreement binding defines terrorism. This study also introduces the latest development of efforts to create a Comprehensive Convention on the Suppression of International Terrorism, which is, unfortunately, no more than small. Given the decades-long efforts to define terrorism, the...

Aspects of customary land tenure may survive even where formal rules in a society supersede custom. This thesis is about persisting custom for Maori Freehold land (MFL) in New Zealand, and the Communal Areas (CAs) of Zimbabwe. Three questions are addressed: what unwritten land tenure custom still persists for Ngai Tahu, Shona and Ndebele, what key historical processes and events in New Zealand and Zimbabwe shaped the relationship between people and land into the form it displays today, and how do we explain differences between surviving customary tenure practices in the two countries? The research was based on in-depth interviews. A key difference between the two countries was found to lie in the type and degree of security available over the years to Maori and Shona/Ndebele. Roots of security were found in the substance of the founding treaties and concessions, and thereafter in a variety of other factors including the help (or lack of it) offered by the law in redressing grievances, the level of intermarriage between settler and autochthon, the differing security of land rights offered in urban centres in the respective countries, demographic factors and the availability of state benefits. This research finds that greater security was offered to Maori than to Shona and Ndebele, and that this has reduced the centrality of customary practices with regard to land. The research found that, in Zimbabwe, tenure security in the CAs is still underwritten by communities and that significant investment is still made in both living and dead members of those communities. Another finding is that land custom has adapted dynamically to meet new challenges, such as urban land and CA land sales. In New Zealand, investment in groups that jointly hold rights in MFL has, to some extent been eclipsed by the payment of rates and the availability of services (e.g. state-maintained boundary records and law enforcement mechanisms) and of benefits (e.g. superannuation, disability and unemployment). Land and community are not as closely linked to survival as they were in the past and, for many, they have come to hold largely symbolic value and less practical significance. Overall, it is the pursuit of security and �belonging� that have been the greatest influences on customary land tenure practices in the long term.

<p>The challenge of alleviating poverty, especially of the rural poor, is a universal one. Mozambique is also faced with this challenge as well the challenge of redressing the inequality exacerbated by civil war. Among the many strategies suggested for addressing poverty is improving poor people&rsquo / s access to land. In Mozambique, all land is owned by the state, yet informal land markets do exist. A theoretical review of the models on informal markets in developing countries reveals that economy of rural family depend greatly on land resources, and that often formalisation of land markets leads to land concentration and speculation rather than to the promotion of economic development. The overall objective of the study was to analyse the economic, institutional and social dynamics and determinants of informal land markets in rural Mozambique and how they impact on the livelihoods of poor people. Due to the largely unexplored nature of the topic, this study is exploratory and descriptive in nature. Research methods included a combination of quantitative and qualitative methods. To achieve these objectives, a strategy comprising two approaches was used. Firstly, a theoretical review was undertaken, to discuss both international and African debate on informal land markets models with regard to different views on Mozambican informal land markets. This theoretical review also covered the political economy of land in Mozambique. Secondly, empirical evidence was systematized in the form of a case study of the perceptions of determinants on informal land markets that was undertaken in Mogovolas district. The lack of clear policy regarding the informal land market in Mozambique produced a complex range of problems, between local people, between locals and new investors, between new investors, and between all these groups and the state. The large majority of smaller localised conflicts were, and continue to be, resolved by traditional authorities and local social-control mechanisms. Conflicts between local people and investors have proved much more complex. The role of the state has been unclear from the start and the state is still dysfunctional due to a lack of transparency, inefficiency, and corruption in management of land.</p>

One of the main themes of South African history is the modification of African tribal life and institutions by the impact of the white society. Both British officials and settlers played a part in this process, but with very different motives and effect. The British, anxious above all else to save defence expenditure, were not prepared to risk provoking a war and had very little incentive to invest large sums in the administration of tne tribes. Settlers, on the other hand, had a vested interest in manipulating tribal society for their own ends: not only did their personal security rely upon quiescent tribesmen, but so did the economic development of the colony, dependent as it was on trade and labour. in addition, the settlers lived, at least along the eastern border, in close contact with the tribes, and were therefore more conscious than officials of those aspects of tribal life which offended Victorian Christianity's ideas of decency and morality. Tribal society was regulated by tribal law under the control of the chiefs; in order to attack aspects of the society, alterations had to be enforced in tribal law. As a result, once the grant of Responsible Government in 1872 gave the settlers control of their own internal affairs, Cape policy on tribal law becomes of particular Interest as a study of how a colonial society attempted to impose often unwelcome changes on an indigenous people, and with what results for both societies. As the problem presented by the African tribes bulked so large in the settler view, there is very little documentation available on the position of the few Khoi and San still living in tribal units, and they have not been included in this study.

<p>The challenge of alleviating poverty, especially of the rural poor, is a universal one. Mozambique is also faced with this challenge as well the challenge of redressing the inequality exacerbated by civil war. Among the many strategies suggested for addressing poverty is improving poor people&rsquo / s access to land. In Mozambique, all land is owned by the state, yet informal land markets do exist. A theoretical review of the models on informal markets in developing countries reveals that economy of rural family depend greatly on land resources, and that often formalisation of land markets leads to land concentration and speculation rather than to the promotion of economic development. The overall objective of the study was to analyse the economic, institutional and social dynamics and determinants of informal land markets in rural Mozambique and how they impact on the livelihoods of poor people. Due to the largely unexplored nature of the topic, this study is exploratory and descriptive in nature. Research methods included a combination of quantitative and qualitative methods. To achieve these objectives, a strategy comprising two approaches was used. Firstly, a theoretical review was undertaken, to discuss both international and African debate on informal land markets models with regard to different views on Mozambican informal land markets. This theoretical review also covered the political economy of land in Mozambique. Secondly, empirical evidence was systematized in the form of a case study of the perceptions of determinants on informal land markets that was undertaken in Mogovolas district. The lack of clear policy regarding the informal land market in Mozambique produced a complex range of problems, between local people, between locals and new investors, between new investors, and between all these groups and the state. The large majority of smaller localised conflicts were, and continue to be, resolved by traditional authorities and local social-control mechanisms. Conflicts between local people and investors have proved much more complex. The role of the state has been unclear from the start and the state is still dysfunctional due to a lack of transparency, inefficiency, and corruption in management of land.</p>

This dissertation is concerned with the public life of Frederick Robert Moor during the period 1893 to 1903. Moor served as Secretary for Native Affairs during the first ten years of responsible government in Natal in the ministries of Sir John Robinson (1893 - 1897), Harry Escombe (1897) and Alfred Hime (1899 - 1903). His policy towards the Africans and his handling of specific issues that faced the Native Affairs Department are examined. This study shows that the political nature of his office and his responsibility to the White electorate influenced his determination of policy and its implementation. Control was the key-note of Moor's policy and continuing in the tradition of the Native Affairs Department he believed that the tribal system and customary law were the best means of effecting this control. He therefore opposed anything that threatened this system such as the system of exemption from customary law which freed Africans from tribal control. This desire to protect the traditional system of government as well as his paternalism explains Moor's reluctance to allow Africans to appeal against the decisions of the lower courts to the higher courts or to permit the employment of lawyers by the Africans in the courts that administered customary law. Moor was opposed to granting the franchise to Africans even though he realised that he, as Secretary for Native Affairs, could not adequately represent their interests. He was also against alienating land in freehold to the Africans. Moor's policy made it impossible for him to find a place in his system for those Africans who wanted to shake off traditionalism and he found it difficult to handle the specific problems faced by them. Moor's location policy was motivated primarily by the desire to control the Africans and this was made more urgent with the spread of the Ethiopian movement. Yet he wished also to improve the Africans ability to support themselves and for this reason he initiated irrigation projects. Moor wanted to bring the mission reserves under the control of the government in the same way as the locations and in achieving this he caused tension between the government and the missionaries. No study of the relations between African and White in colonial Natal can exclude the labour issue. Moor had an individual approach to the labour question but was constantly torn between the demands of the colonists for cheap and abundant labour and his obligations to the Africans. He is revealed as being sympathetic to the position of the Africans. His unwillingness to prevent African labour in Natal from going to the Transvaal and his appOintment of J.S. Marwick to see to the interests of these Africans in the Transvaal were controversial. By 1903 Moor had acquired considerable experience as Secretary for Native Affairs and had formulated his policy. Despite his good intentions his policy succeeded in sowing the seeds of dissatisfaction amongst the Africans. The Africans appreciated his honesty but were critical of his failure to deal with specific issues such as the improvement of their educational facilities. Moor did not have to deal with an uprising in this period but three years after he left office the storm broke over Natal and Moor's responsibility for this is briefly discussed. Moor returned to the government in 1906 as Prime Minister and Minister for Native Affairs but this is outside the scope of this dissertation. / Thesis (M.A.)-University of Durban-Westville, 1980.

Aspects of customary land tenure may survive even where formal rules in a society supersede custom. This thesis is about persisting custom for Maori Freehold land (MFL) in New Zealand, and the Communal Areas (CAs) of Zimbabwe. Three questions are addressed: what unwritten land tenure custom still persists for Ngai Tahu, Shona and Ndebele, what key historical processes and events in New Zealand and Zimbabwe shaped the relationship between people and land into the form it displays today, and how do we explain differences between surviving customary tenure practices in the two countries? The research was based on in-depth interviews. A key difference between the two countries was found to lie in the type and degree of security available over the years to Maori and Shona/Ndebele. Roots of security were found in the substance of the founding treaties and concessions, and thereafter in a variety of other factors including the help (or lack of it) offered by the law in redressing grievances, the level of intermarriage between settler and autochthon, the differing security of land rights offered in urban centres in the respective countries, demographic factors and the availability of state benefits. This research finds that greater security was offered to Maori than to Shona and Ndebele, and that this has reduced the centrality of customary practices with regard to land. The research found that, in Zimbabwe, tenure security in the CAs is still underwritten by communities and that significant investment is still made in both living and dead members of those communities. Another finding is that land custom has adapted dynamically to meet new challenges, such as urban land and CA land sales. In New Zealand, investment in groups that jointly hold rights in MFL has, to some extent been eclipsed by the payment of rates and the availability of services (e.g. state-maintained boundary records and law enforcement mechanisms) and of benefits (e.g. superannuation, disability and unemployment). Land and community are not as closely linked to survival as they were in the past and, for many, they have come to hold largely symbolic value and less practical significance. Overall, it is the pursuit of security and �belonging� that have been the greatest influences on customary land tenure practices in the long term.