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Das Menschenrecht auf Wasser im Kontext der Vereinten Nationen: Eine Analyse der normativen Standards und Verbindlichkeit im Lichte der Allgemeinen Bemerkung Nr. 15 des CESCR und des VölkergewohnheitsrechtsBraun, Rebekka 11 September 2020 (has links)
Die globale (Trink-)Wasserkrise, welche insbesondere für vulnerable Bevölkerungsgruppen eine existenzielle Bedrohung darstellt, hat die Frage nach einem verbindlichen Menschenrecht auf Zugang zu sauberem Trinkwasser (HRW) ins Zentrum internationaler Aufmerksamkeit gerückt. In der vorliegenden Arbeit wird die Bedeutung der Allgemeinen Bemerkung Nr. 15 des Ausschusses für wirtschaftliche, soziale und kulturelle Rechte (CESCR) für die Festlegung normativer Standards und die völkerrechtliche Verankerung des HRW untersucht. Eine Analyse von Staatenberichten und nationaler Spruchpraxis soll Aufschluss über die Wirkungskraft der Allgemeinen Bemerkung Nr. 15 geben. Mit Blick auf Diskurse in relevanten UN-Gremien wie der Generalversammlung und dem Menschenrechtsrat soll weiterhin die mögliche völkergewohnheitsrechtliche Relevanz des Rechts beleuchtet und die Rolle entwicklungspolitischer Initiativen für die Harmonisierung der Staatenpraxis analysiert werden.
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Determining matrimonial property rights on divorce : an appraisal of the legal regimes in BotswanaQuansah, E. K. 06 1900 (has links)
The bulk of the matrimonial property regimes operating in Botswana
were inherited from the country's colonial past. Since independence
there ha'> not been any realistic attempt to reform them. The thesis set
out to appraisal the legal regimes governing the determination of
matrimonial property on divorce to ascertain their efficacy in realising
the legitimate aspiration of married couples. Comparisons were made
with similar countries to determine how these have tackled problems
relating to determination of matrimonial property on divorce.
The study found that where there is a dispute about matrimonial
property in marriages out of community, the courts have no discretion
to readjust the rights of the parties. This situation adversely affect nonworking
wives who spent most of their time looking after their
husbands and children without being able to acquire capital assets.
Recognition is not given to such domestic contribution to the welfare
of the family. It was also found that the exercise of the marital power
by husbands of marriages in community of property deprives wives of
those marriages the right to administer the joint estate. The patriarchal
nature of customary law, which governs the majority of disputes about
matrimonial property, discriminates against women.
Consequently, the following, inter alia, are suggested as reform
measures.
(a) The courts should be g1ven a wide discretionary power,
circumscribed by statutory guidelines, to reallocate matrimonial
property on divorce irrespective of the matrimonial property regime that
governs the marriage. TI1e underlying principle should be equality of
sharing but this may be departed from where the circumstances of the
particular case warrant it
(b) A spouse's domestic contribution towards the welfare of the family
should be recognised.
(c) The marital power of husbands should be abolished.
(d) The provisions of the Matrimonial Causes Act should be made
applicable to customary marriages. / Private Law / LL.D.
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123 |
Determining matrimonial property rights on divorce : an appraisal of the legal regimes in BotswanaQuansah, E. K. 06 1900 (has links)
The bulk of the matrimonial property regimes operating in Botswana
were inherited from the country's colonial past. Since independence
there ha'> not been any realistic attempt to reform them. The thesis set
out to appraisal the legal regimes governing the determination of
matrimonial property on divorce to ascertain their efficacy in realising
the legitimate aspiration of married couples. Comparisons were made
with similar countries to determine how these have tackled problems
relating to determination of matrimonial property on divorce.
The study found that where there is a dispute about matrimonial
property in marriages out of community, the courts have no discretion
to readjust the rights of the parties. This situation adversely affect nonworking
wives who spent most of their time looking after their
husbands and children without being able to acquire capital assets.
Recognition is not given to such domestic contribution to the welfare
of the family. It was also found that the exercise of the marital power
by husbands of marriages in community of property deprives wives of
those marriages the right to administer the joint estate. The patriarchal
nature of customary law, which governs the majority of disputes about
matrimonial property, discriminates against women.
Consequently, the following, inter alia, are suggested as reform
measures.
(a) The courts should be g1ven a wide discretionary power,
circumscribed by statutory guidelines, to reallocate matrimonial
property on divorce irrespective of the matrimonial property regime that
governs the marriage. TI1e underlying principle should be equality of
sharing but this may be departed from where the circumstances of the
particular case warrant it
(b) A spouse's domestic contribution towards the welfare of the family
should be recognised.
(c) The marital power of husbands should be abolished.
(d) The provisions of the Matrimonial Causes Act should be made
applicable to customary marriages. / Private Law / LL.D.
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One person's culture is another person's crime : a cultural defence in South African law? / Jacques Louis MattheeMatthee, Jacques Louis January 2014 (has links)
The South African legal system is dualistic in nature with the one part
consisting of the Western common law and the other consisting of African
customary law. Although these two legal systems enjoy equal recognition,
they regularly come into conflict with each other due to their divergent value
systems. It is especially within the context of the South African criminal law
that this conflict becomes apparent, because an accused's conduct can be
viewed as lawful in terms of African customary law, but unlawful in terms of
the South African common law. In such cases the accused may attempt to
raise a cultural defence by putting forth evidence of his cultural background
or values to convince the court that his prima facie unlawful conduct is
actually lawful and that he should escape criminal liability. Alternatively, an
accused may put forth evidence of his cultural background or values in an
attempt to receive a lighter sentence. The question which therefore arises is
whether a so-called "cultural defence" exists in the South African criminal
law, and if so, what the influence of such a defence on the South African
criminal law is.
The conflict between African Customary law and the South African common
law in the context of the criminal law arises due to the fact that the indigenous
belief in witchcraft, (including witch-killings), the indigenous belief in the
tokoloshe and the use of muti-medicine (including muti-murders), as well as
the phenomenon of "necklacing" and the custom of ukuthwala can result in
the commission of various common law crimes. In the case of witch-killings,
the perpetrators can be charged with the common law crimes of murder or,
if the victim survives, attempted murder, common assault or assault with
intent to do grievous bodily harm. Similarly, necklacing, as a method used
for killing witches, can also result in the commission of these common law
crimes. What is more, the perpetrators of witch-killings can also be charged
with the statutory crimes of accusing someone of witchcraft, pointing the
victim out as being a witch or wizard or injuring a person based on
information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the
common law crimes of murder or, if the victim survives, common assault or
assault with intent to do grievous bodily harm. The perpetrators of mutimurders
can also face charges of murder or attempted murder, if the victim
survives. The indigenous custom of ukuthwala can result in the commission
of common law crimes such as abduction, kidnapping and common assault,
as well as the statutory crime of rape.
A perusal of South African case law dealing with the indigenous beliefs and
customs above reveals that the accused in such cases have indeed
attempted to put forth evidence of their indigenous beliefs or customs to
persuade the criminal courts that they should escape criminal liability for a
particular crime. In fact, these arguments were raised within the context of
the existing common law defences such as private defence, necessity,
involuntary conduct and a lack of criminal capacity. However, the South
African criminal courts have up till now in general been unwilling to accept
arguments of indigenous beliefs and customs to serve as a defence, either
alone or within the context of the existing defences above, for the
commission of a common law or statutory crime.
They have, however, been more willing to accept evidence of an accused's
indigenous belief or custom to serve as a mitigating factor during sentencing.
The extent to which an accused's cultural background will serve as a
mitigating factor will, of course, depend on the facts and circumstances of
each case. As a result an accused who is charged with the commission of a
culturally motivated crime has no guarantee that his cultural background and
values will in fact be considered as a mitigating factor during his criminal trial.
It is thus ultimately concluded that a so-called "cultural defence" does not
exist in the South African Criminal law.
The indigenous beliefs and customs above not only result in the commission
of common law or statutory crimes, but also in the infringement of various
fundamental human rights in the Constitution. Witch-killings result in the
infringement of the constitutional right to life and the right to freedom and
security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in
the Constitution. Similarly, muti-murders and necklacing also result in the
infringement of the right to life and the right to freedom and security of the
person entrenched in the Constitution. The custom of ukuthwala results in
the infringement of the right to equality, the right to freedom and security of
the person, the right to live in an environment that is not harmful to health or
well-being, the right not to be subjected to slavery, servitude or forced labour,
the right to basic education and other constitutional safeguards aimed at
protecting children.
In light of the constitutional right to freedom of culture and the right to freely
participate in a cultural life of one's choosing the question can be asked
whether the time has come to formally recognise a cultural defence in the
South African criminal law. In this study it is argued that these constitutional
rights do not warrant the formal recognition of a cultural defence. Instead, it
is recommended that the conflict between African customary law and the
South African common law can be resolved by bringing indigenous beliefs
and customs in line with the values that underpin the Constitution as the
supreme law of South Africa. Of course, this does not mean that the courts
should ignore cultural considerations during a criminal trial if and when they
arise. In fact, as pointed out in this study, the courts have a constitutional
duty to apply African customary law when that law is applicable. It goes
without saying that, when an accused attempts to escape criminal liability for
his unlawful conduct by raising arguments of his cultural background, African
customary law will be applicable and must be considered by the court. This
in turn raises the question as to how the criminal courts can ensure that they
give enough consideration to the possibility that an accused's criminal
conduct was culturally motivated so as to comply with their constitutional
mandate referred to above. Although it would be nearly impossible to
formulate a perfect or flawless approach according to which a judicial officer
can adjudicate criminal matters involving culturally motivated crimes, the
author suggests the following practical approach which may provide some
guidance to judicial officers in dealing with cases involving culturally
motivated crimes: • Step 1: Consider whether the commission of the crime was culturally
motivated or not. If it seems as though the accused did not commit a
culturally motivated crime, the trial can continue on that basis. If,
however, it is evident that the accused indeed committed a culturally
motivated crime, step 2 follows.
• Step 2: Once it has been determined that the commission of the crime
was culturally motivated, the next step is to determine which indigenous
belief or custom led to the commission of the crime. Once the relevant
indigenous belief or custom has been identified, step 3 follows.
• Step 3: When it is clear which indigenous belief or custom led to the
accused's commission of the crime, the next step is to determine
whether arguments pertaining to that particular indigenous belief or
custom may be raised within the context of the existing defences in the
South African Criminal law in order to exclude the accused's criminal
liability. If an accused relies on one of the existing defences in the South
African criminal law, he will have to lay a proper evidential foundation
for his defence before the court. In assessing the evidence put forth by
the accused, the judicial officer must consider the judgment and
reasoning in previous cases dealing with the particular indigenous
belief or custom. A judicial officer must also consider the values
underpinning the Constitution when conducting such an assessment. If
a judicial officer upholds an accused's defence, the accused is
acquitted. However, if the judicial officer rejects an accused's defence,
the accused must be convicted and step 4 follows.
• Step 4: Once an accused has been convicted, a court should consider
whether arguments of his cultural background can serve as an
extenuating circumstance, mitigating the punishment to be imposed on
him.
However, the practical approach above merely serves as a suggestion to
judicial officers in dealing with culturally motivated crimes and ultimately it
will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two
legal systems.
The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014
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125 |
The attainment of self-determination in African states by rebels / Jean De Dieu ZikamabahariZikamabahari, Jean De Dieu January 2014 (has links)
Self-determination is a peoples' right to freely determine their political, economic and
cultural destiny without external interference. However, the cultivation of a culture of
respect for self-determination remains the greatest challenge to post-colonial Africa.
Dictatorships and other oppressive regimes very substantially affected Africa's efforts to
develop a culture of constitutionalism and respect for the right of peoples to selfdetermination.
Most African countries typify the failed effort of trying to establish an
enduring democracy and respect for the right of peoples to take part in the government.
After five decades of transition from colonialism to constitutional democracy, most
African peoples are still under the yoke of governments they consider undesirable or
oppressive. This work primarily sets out to investigate if the denial of the right of peoples
to self-determination justifies the use of force to secure such a right. Since
independence, Africa has experienced armed rebel groups seeking either to effect
radical transformation of the whole state or to separate from the state to which they
belong in order to create a new state. In the main, this study explores the extent to
which rebel groups acting on behalf of peoples are or are not allowed to use force for
the attainment of self-determination.
The thesis begins with an historical development of the right to self-determination in
international law. It initially examines how self-determination has developed from a
political principle to a legal right. Despite the fact that self-determination is one of the
core principles of the UN Charter, there are still many controversies over its precise
meaning, scope and application. The thesis considers the two aspects of selfdetermination:
external self-determination and internal self-determination. The external
aspect implies the right of people to form a new, sovereign and independent state,
whereas the internal aspect implies the right of people to participate in the political
framework of an existing state.
The thesis also assesses the state of the academic literature over the right of peoples to
self-determination, with a view to determining whether the right can be used by a group
of people whose internal self-determination has been denied to effect secession from
the state. It advocates that, outside the colonial context, the right of self-determination
does not equal to a "right to secession and independence". The thesis argues, however,
that in exceptional circumstances such as gross violations of human rights and the
denial of internal self-determination, people should be endowed with a right to
secession in the manifestation of a right to unilateral secession as a remedy of such
injustices.
The thesis further turns to the mechanisms for the protection of the peoples' right to
self-determination, the problems and challenges in Africa. The challenges do not only
include the legality of the use of force by rebel groups and national liberation
movements in seeking to attain self-determination, but also the right of other states to
assist them in their struggles. The work probes the nature of international law and
critically assesses whether the persistent denial of demands for self-determination led to
calls for drastic remedies, including the use of armed force. Before this theory is
critically assessed, the thesis defines the differences between national liberation
movements and rebel groups. It argues that as far as self-determination struggles are
concerned, there must be representative organisations acting on behalf of people
whose right of self-determination has been denied.
In the light of these contentions, the study examines the general ban on the use of force
as laid down by the UN Charter, and finds that the Charter does not expressly refer to
self-determination as a situation where people may resort to the use of force for the
attainment of such a right. It then turns to the history of and circumstance surrounding
the use of force, examines the jus ad bellum regarding "liberation struggles", and
concludes that the use of force by national liberation movements against colonial and
racist regimes has strong theoretical foundations and support in state practice.
Outside of the colonial and apartheid contexts, however, the argument that rebels acting
on behalf of oppressed peoples may legitimately use force in pursuit of selfdetermination
thus remains ambiguous. In that context, this thesis examines the
practice relating to the use of force by rebel groups and the laws of war provisions that
apply in civil wars, and concludes that none of them proves that the international
community of states accepts rebels' right to use force as a legal entitlement.
Finally, based on the lessons learned from and lacunae identified in all norms relating to
the enforcement mechanisms of the right of self-determination, this study concludes
with a set of suggestions and recommendations. / LLD (Law), North-West University, Potchefstroom Campus, 2015
|
126 |
One person's culture is another person's crime : a cultural defence in South African law? / Jacques Louis MattheeMatthee, Jacques Louis January 2014 (has links)
The South African legal system is dualistic in nature with the one part
consisting of the Western common law and the other consisting of African
customary law. Although these two legal systems enjoy equal recognition,
they regularly come into conflict with each other due to their divergent value
systems. It is especially within the context of the South African criminal law
that this conflict becomes apparent, because an accused's conduct can be
viewed as lawful in terms of African customary law, but unlawful in terms of
the South African common law. In such cases the accused may attempt to
raise a cultural defence by putting forth evidence of his cultural background
or values to convince the court that his prima facie unlawful conduct is
actually lawful and that he should escape criminal liability. Alternatively, an
accused may put forth evidence of his cultural background or values in an
attempt to receive a lighter sentence. The question which therefore arises is
whether a so-called "cultural defence" exists in the South African criminal
law, and if so, what the influence of such a defence on the South African
criminal law is.
The conflict between African Customary law and the South African common
law in the context of the criminal law arises due to the fact that the indigenous
belief in witchcraft, (including witch-killings), the indigenous belief in the
tokoloshe and the use of muti-medicine (including muti-murders), as well as
the phenomenon of "necklacing" and the custom of ukuthwala can result in
the commission of various common law crimes. In the case of witch-killings,
the perpetrators can be charged with the common law crimes of murder or,
if the victim survives, attempted murder, common assault or assault with
intent to do grievous bodily harm. Similarly, necklacing, as a method used
for killing witches, can also result in the commission of these common law
crimes. What is more, the perpetrators of witch-killings can also be charged
with the statutory crimes of accusing someone of witchcraft, pointing the
victim out as being a witch or wizard or injuring a person based on
information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the
common law crimes of murder or, if the victim survives, common assault or
assault with intent to do grievous bodily harm. The perpetrators of mutimurders
can also face charges of murder or attempted murder, if the victim
survives. The indigenous custom of ukuthwala can result in the commission
of common law crimes such as abduction, kidnapping and common assault,
as well as the statutory crime of rape.
A perusal of South African case law dealing with the indigenous beliefs and
customs above reveals that the accused in such cases have indeed
attempted to put forth evidence of their indigenous beliefs or customs to
persuade the criminal courts that they should escape criminal liability for a
particular crime. In fact, these arguments were raised within the context of
the existing common law defences such as private defence, necessity,
involuntary conduct and a lack of criminal capacity. However, the South
African criminal courts have up till now in general been unwilling to accept
arguments of indigenous beliefs and customs to serve as a defence, either
alone or within the context of the existing defences above, for the
commission of a common law or statutory crime.
They have, however, been more willing to accept evidence of an accused's
indigenous belief or custom to serve as a mitigating factor during sentencing.
The extent to which an accused's cultural background will serve as a
mitigating factor will, of course, depend on the facts and circumstances of
each case. As a result an accused who is charged with the commission of a
culturally motivated crime has no guarantee that his cultural background and
values will in fact be considered as a mitigating factor during his criminal trial.
It is thus ultimately concluded that a so-called "cultural defence" does not
exist in the South African Criminal law.
The indigenous beliefs and customs above not only result in the commission
of common law or statutory crimes, but also in the infringement of various
fundamental human rights in the Constitution. Witch-killings result in the
infringement of the constitutional right to life and the right to freedom and
security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in
the Constitution. Similarly, muti-murders and necklacing also result in the
infringement of the right to life and the right to freedom and security of the
person entrenched in the Constitution. The custom of ukuthwala results in
the infringement of the right to equality, the right to freedom and security of
the person, the right to live in an environment that is not harmful to health or
well-being, the right not to be subjected to slavery, servitude or forced labour,
the right to basic education and other constitutional safeguards aimed at
protecting children.
In light of the constitutional right to freedom of culture and the right to freely
participate in a cultural life of one's choosing the question can be asked
whether the time has come to formally recognise a cultural defence in the
South African criminal law. In this study it is argued that these constitutional
rights do not warrant the formal recognition of a cultural defence. Instead, it
is recommended that the conflict between African customary law and the
South African common law can be resolved by bringing indigenous beliefs
and customs in line with the values that underpin the Constitution as the
supreme law of South Africa. Of course, this does not mean that the courts
should ignore cultural considerations during a criminal trial if and when they
arise. In fact, as pointed out in this study, the courts have a constitutional
duty to apply African customary law when that law is applicable. It goes
without saying that, when an accused attempts to escape criminal liability for
his unlawful conduct by raising arguments of his cultural background, African
customary law will be applicable and must be considered by the court. This
in turn raises the question as to how the criminal courts can ensure that they
give enough consideration to the possibility that an accused's criminal
conduct was culturally motivated so as to comply with their constitutional
mandate referred to above. Although it would be nearly impossible to
formulate a perfect or flawless approach according to which a judicial officer
can adjudicate criminal matters involving culturally motivated crimes, the
author suggests the following practical approach which may provide some
guidance to judicial officers in dealing with cases involving culturally
motivated crimes: • Step 1: Consider whether the commission of the crime was culturally
motivated or not. If it seems as though the accused did not commit a
culturally motivated crime, the trial can continue on that basis. If,
however, it is evident that the accused indeed committed a culturally
motivated crime, step 2 follows.
• Step 2: Once it has been determined that the commission of the crime
was culturally motivated, the next step is to determine which indigenous
belief or custom led to the commission of the crime. Once the relevant
indigenous belief or custom has been identified, step 3 follows.
• Step 3: When it is clear which indigenous belief or custom led to the
accused's commission of the crime, the next step is to determine
whether arguments pertaining to that particular indigenous belief or
custom may be raised within the context of the existing defences in the
South African Criminal law in order to exclude the accused's criminal
liability. If an accused relies on one of the existing defences in the South
African criminal law, he will have to lay a proper evidential foundation
for his defence before the court. In assessing the evidence put forth by
the accused, the judicial officer must consider the judgment and
reasoning in previous cases dealing with the particular indigenous
belief or custom. A judicial officer must also consider the values
underpinning the Constitution when conducting such an assessment. If
a judicial officer upholds an accused's defence, the accused is
acquitted. However, if the judicial officer rejects an accused's defence,
the accused must be convicted and step 4 follows.
• Step 4: Once an accused has been convicted, a court should consider
whether arguments of his cultural background can serve as an
extenuating circumstance, mitigating the punishment to be imposed on
him.
However, the practical approach above merely serves as a suggestion to
judicial officers in dealing with culturally motivated crimes and ultimately it
will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two
legal systems.
The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014
|
127 |
The attainment of self-determination in African states by rebels / Jean De Dieu ZikamabahariZikamabahari, Jean De Dieu January 2014 (has links)
Self-determination is a peoples' right to freely determine their political, economic and
cultural destiny without external interference. However, the cultivation of a culture of
respect for self-determination remains the greatest challenge to post-colonial Africa.
Dictatorships and other oppressive regimes very substantially affected Africa's efforts to
develop a culture of constitutionalism and respect for the right of peoples to selfdetermination.
Most African countries typify the failed effort of trying to establish an
enduring democracy and respect for the right of peoples to take part in the government.
After five decades of transition from colonialism to constitutional democracy, most
African peoples are still under the yoke of governments they consider undesirable or
oppressive. This work primarily sets out to investigate if the denial of the right of peoples
to self-determination justifies the use of force to secure such a right. Since
independence, Africa has experienced armed rebel groups seeking either to effect
radical transformation of the whole state or to separate from the state to which they
belong in order to create a new state. In the main, this study explores the extent to
which rebel groups acting on behalf of peoples are or are not allowed to use force for
the attainment of self-determination.
The thesis begins with an historical development of the right to self-determination in
international law. It initially examines how self-determination has developed from a
political principle to a legal right. Despite the fact that self-determination is one of the
core principles of the UN Charter, there are still many controversies over its precise
meaning, scope and application. The thesis considers the two aspects of selfdetermination:
external self-determination and internal self-determination. The external
aspect implies the right of people to form a new, sovereign and independent state,
whereas the internal aspect implies the right of people to participate in the political
framework of an existing state.
The thesis also assesses the state of the academic literature over the right of peoples to
self-determination, with a view to determining whether the right can be used by a group
of people whose internal self-determination has been denied to effect secession from
the state. It advocates that, outside the colonial context, the right of self-determination
does not equal to a "right to secession and independence". The thesis argues, however,
that in exceptional circumstances such as gross violations of human rights and the
denial of internal self-determination, people should be endowed with a right to
secession in the manifestation of a right to unilateral secession as a remedy of such
injustices.
The thesis further turns to the mechanisms for the protection of the peoples' right to
self-determination, the problems and challenges in Africa. The challenges do not only
include the legality of the use of force by rebel groups and national liberation
movements in seeking to attain self-determination, but also the right of other states to
assist them in their struggles. The work probes the nature of international law and
critically assesses whether the persistent denial of demands for self-determination led to
calls for drastic remedies, including the use of armed force. Before this theory is
critically assessed, the thesis defines the differences between national liberation
movements and rebel groups. It argues that as far as self-determination struggles are
concerned, there must be representative organisations acting on behalf of people
whose right of self-determination has been denied.
In the light of these contentions, the study examines the general ban on the use of force
as laid down by the UN Charter, and finds that the Charter does not expressly refer to
self-determination as a situation where people may resort to the use of force for the
attainment of such a right. It then turns to the history of and circumstance surrounding
the use of force, examines the jus ad bellum regarding "liberation struggles", and
concludes that the use of force by national liberation movements against colonial and
racist regimes has strong theoretical foundations and support in state practice.
Outside of the colonial and apartheid contexts, however, the argument that rebels acting
on behalf of oppressed peoples may legitimately use force in pursuit of selfdetermination
thus remains ambiguous. In that context, this thesis examines the
practice relating to the use of force by rebel groups and the laws of war provisions that
apply in civil wars, and concludes that none of them proves that the international
community of states accepts rebels' right to use force as a legal entitlement.
Finally, based on the lessons learned from and lacunae identified in all norms relating to
the enforcement mechanisms of the right of self-determination, this study concludes
with a set of suggestions and recommendations. / LLD (Law), North-West University, Potchefstroom Campus, 2015
|
128 |
The indigenous law of contract with particular reference to the Swazi in the Kingdom of SwazilandVan Schalkwyk, Adelle 30 November 2006 (has links)
This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced.
Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted.
Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained.
This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities.
The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. / Jurisprudence / LL.D.
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The communal land tenure system: an analysis of some trends in the Ditsobotla area of the North West provinceTau, Mmaphaka Ephraim 31 July 2003 (has links)
Until recently, there have been different and sometimes conflicting views on whether or not the communal land tenure system (CLTS) has a positive or negative impact on rural economic welfare. This study analyses some trends associated with the CLTS in the Ditsobotla area of the NorthWest province, focusing on the implications for rural economic welfare.
The results of the study suggest that the CLTS is extremely important in order to sustain the rural economy, and therefore this dissertation presents developmental, policy and research options for consideration by government and other affected stakeholders for the betterment of the livelihood of people in the Ditsobotla area. The study adopts participatory research techniques in the selected villages of Springbokpan and Mooifontein. It also reflects on land tenure experiences in other African countries.
The dissertation concludes with a suggestion that the South African government should engage in in-depth research programmes prior to the implementation of the envisaged communal land tenure reform legislation and that, the state should secure sufficient funding to boost agricultural activities in the area.
Taking all these factors into account, a view is held that all developmental endeavours in the area must be informed by the collective participation of the affected local people, and their efforts must be united for the enhancement of their livelihood. / Development Studies / M.A. (Development Studies)
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Begrip Regte in Eiendom in Artikel 28(1) van die grondwet van die Republiek van Suid-Afrika 200 van 1993 / The concept "rights of property" in Section 28(1) of the Constitution of the Republic of South Africa 200 of 1993Engelbrecht, Henriétte 11 1900 (has links)
Summaries in Afrikaans and English / Text in Afrikaans / Die eiendomsklousule soos vervat in Artikel 28(1) van die Grondwet waarborg regte
in eiendom. Daar word na die tradisionele eiendomsparadigma verwys, asook die
leemtes in die konsep. Die "new property"-konsep word vervolgens in oenskou
geneem. Sowel die gemenereg as die inheemse reg word, met verwysing na die
begrippe "regte" en "eiendom", behandel. Daarna volg 'n bespreking van die konsep
"regte in eiendom", wat die inhoud en omvang van die konsep aandui.
In 'n afsonderlike hoofstuk word regte in grand bespreek. Die vraag of 'n
konstitusionele reg ten aansien van huisvesting bestaan, geniet oak aandag. Ten slotte
word regsvergelykend te werk gegaan en na buitelandse regsbronne verwys wat
moontlik in die toekoms 'n rol by die uitleg van die Grondwet kan speel. Daar word
gepoog om aan te dui dat die Grondwet as geheel ge"interpreteer en toegepas behoort
te word. Die korrekte interpretasie en toepassing van die Grondwet word van uiterste
belang beskou ten einde aan die doel van die Grondwet te voldoen. / The property clause is contained in Section 28(1) of the Constitution, which guarantees
rights in property. The tradisional property paradigm is referred to, as well as its
deficiencies. Thereupon the "new property" concept is taken account of. The common
law and the customary law are dealt with, with reference to the concepts "rights" and
"property". Subsequently a discussion of the concept "rights in property" follows,
denoting this concept's contents and extent. Thereupon rights in land is dealt with. A
constitutional right to housing is also attended to. Finally a comparative overview is
given with reference to foreign case law, which may in future play a role in the
interpretation of the Constitution. Attempts are made to indicate that the Constitution
should be interpreted and enforced as a whole. In its correct interpretation and
enforcement it is of utmost importance to have due regard to the objects of the
Constitution. / Constitutional, International & Indigenous Law / LL.M.
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