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The Global ETD Search service is a free service for researchers
to find electronic theses and dissertations. This service is
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Networked Digital Library of Theses and Dissertations.
Our metadata is collected from universities around the world. If you manage a university/consortium/country archive and want to be added, details can be found on the NDLTD website.
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Showing 31 to 38 of 38 (0.03 seconds)Spelling suggestions: "subject:"relict"" "subject:"derelict""
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The action of dependants from a comparative and an African perspectiveMokotong, Matshilane 10 1900 (has links)
The available sources on the dependency action in South Africa do not mention the presence or absence of traditional values. This study was prompted by a simple curiosity to discover the traditional legal values of the dependency action for loss of support. Accordingly, the study critically examines the action of dependants for loss of support and other related losses in South Africa, Botswana and Lesotho from an African perspective. It then compares this to its application in Australia, a country that is known for its recognition and inclusion of indigenous Australian customary law. The study recommends that traditional values should be preserved in the records of the legal system, as it might stimulate a discussion, which could lead to the culmination of a single dependency action tailored to fit the whole nation and all its different cultures and religions. / Private Law
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The constitutionality of vicarious liability in the context of the South African labour law : a comparative studyVan Eeden, Albert Jacob 03 July 2014 (has links)
If the expectancy that someone was to act according to what we deem to be his or her “duty” was that straightforward, there would be no need to address the issues of liability of the employee for the wrongful acts of the employer. The recent - and some say alarming - trend in South Africa to hold employers (particularly the government) liable for wrongful, culpable acts committed by their employees, gives rise to difficulties and any inquiry into the possible vicarious liability of the employer should necessarily always start by asking whether there was in fact a wrongful, culpable act committed by the employee. If not, there can neither be direct liability of the employee nor vicarious liability by the employer. Where the employee did indeed commit a delict, the relationship between the wrongdoer and his or her employer at the time of the wrongdoing becomes important. It is then often, in determining whether the employee was acting in the scope of his or her employment that normative issues come to the fore. Over the years South African courts have devised tests to determine whether an employee was in fact acting in the scope of his employment. / Jurisprudence / LL. M.
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The indigenous rights of personality with particular reference to the Swazi in the kingdom of SwazilandAnspach, Philip 30 November 2004 (has links)
This study was undertaken to establish whether rights of personality are known in indigenous law. Since indigenous law differs not only between tribes but is also affected by the degree of exposure to Western values, a micro-study has been done in a semi-rural environment in the Kingdom of Swaziland to establish to what extent own value systems have been influenced or altered when Western legal concepts are utilised. The information, obtained by interviewing a panel of experts, was compared with the available literature. During the process of gathering information, the aims of the research were not only to describe how the legal principles function, but also to take note of those socio-cultural processes which function outside of the law.
Rights of personality were studied against a background of the culture and way of life of the peoples concerned. The importance of culture has been acknowledged in the Constitution of the Republic of South Africa, wherein the recognition and application of indigenous law generally rests on a constitutionally protected right to culture.
Whilst the identifiable rights of personality may generally be classified according to specialised legal systems, the separation of rights to good name and to dignity may be inappropriate in the indigenous sphere. Dignity in indigenous legal systems is to be viewed as a comprehensive right of personality, into which should be subsumed the right to good name and reputation in the community.
It is such dignity, embracing the ubuntu quality of humanness that is protected
as a comprehensive indigenous right of personality.
Although the indigenous law of personality is showing some signs of adapting to new developments, there is also proof that the established legal principles and human values are being retained. However, these changes are unique and are neither typically traditional nor Western. The indigenous law of personality, operating in a changing social environment, has to retain its flexibility and adaptability in order to remain ”living” law for the peoples concerned. / Jurisprudence / LL.D.
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Recognition and enforcement of foreign custody orders and the associated problem of international parental kidnapping : a model for South AfricaNicholson, Caroline Margaret Anne 07 1900 (has links)
Within the context of recognition and enforcement of foreign judgments the recognition and enforcement of foreign custody orders is unique. By reason of the fact that custody orders are always modifiable "in the best interests of the child" they cannot be regarded as final orders and
are thus not capable of recognition and enforcement on the same basis as final orders.
The failure of courts to afford foreign custody orders recognition and enforcement in the normal course has created the potential for a person deprived of the custody of a child to remove the child from the jurisdiction of a court rendering a custody order to another jurisdiction within which he or she may seek a new, more favourable order. This potential for behaviour in contempt of an existing order has been exploited by numerous parents who feel aggrieved by custody orders. The problem of parental child snatching has escalated to such a degree that the Hague Convention on the Civil Aspects of International Child Abduction was drawn up to introduce uniform measures amongst member states to address this problem. Despite being a meaningful step in the fight against international child abduction the Hague Convention does not fully resolve the problem. For this
reason other measures have been suggested to supplement the Convention.
The different approaches taken in South Africa, the United Kingdom, Australia and the United States of America to recognition and enforcement of foreign custody orders and the measures to overcome
the problem of international child abduction are examined and a comparative methodology applied to the design of a model approach for South Africa. The object of this model is to permit the South
African courts to address the international child abduction problem without falling prey to any of the pitfalls experienced elsewhere in the legal systems examined. / Law / LL.D.
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Recherche sur la qualification en droit international privé des obligations / Research on characterisation in private international law of obligationsMinois, Maud 29 November 2016 (has links)
Pendant longtemps, la qualification lege fori a dominé la scène internationale. D'une conception stricte, témoin d'une analyse particulariste du droit international privé, elle a progressivement évolué vers une conception assouplie. Aujourd'hui, les auteurs s'accordent à voir dans la qualification lege fori, une méthode de qualification appropriée. Confrontée au droit des obligations, la qualification lege fori révèle ses faiblesses. Elle est atteinte d'un vice originel qui implique de s'interroger sur son bien-fondé. Même assouplie, la qualification lege fori est incapable de se détacher des concepts du for. Une situation internationale sera donc résolue selon des concepts dictés pour les besoins du droit interne. Ces insuffisances s'observent à l'étude de cas hybrides. Il s'agit d'hypothèses particulièrement délicates à qualifier car elles se situent à la lisière de la matière contractuelle et de la matière délictuelle. La présente étude se propose de rechercher un modèle de qualification qui puisse répondre à la fonction internationale de la règle à appliquer. À côté de la qualification lege fori, il existe une appréhension européenne de la qualification. Celle-ci s'organise autour de l'élaboration de qualifications autonomes, a priori distinctes de la qualification lege fori. La Cour de justice a ainsi opté pour une qualification autonome des notions de matière contractuelle et de matière délictuelle. Confrontée à la qualification lege fori, la qualification autonome révèle sa véritable nature. Sous certains aspects, elle est une forme de qualification lege fori. Sous un autre angle, elle s'en éloigne et peut être analysée comme une véritable qualification internationale. Contrairement à la qualification lege fori, la qualification autonome répond à la fonction internationale de la règle de droit international privé. Elle est donc adaptée aux besoins de la vie internationale. Une fois le bien-fondé de l'approche autonome posée, il était nécessaire de s'interroger sur sa généralisation. En effet, l'adoption d'un ensemble complet de textes en droit international privé européen des obligations a fait émerger un débat sur l'opportunité d'adopter une qualification unitaire des notions communes aux textes de Bruxelles et de Rome. La présente étude se propose de retenir un modèle autonome et moniste de la qualification borné aux seules relations internationales. / For a long time, the lege fori characterisation has dominated the international scene. It has evolved from a strict conception, witness of a particularistic approach of private international law, towards a more flexible conception. Nowadays, authors accept the lege fori characterisation as an appropriate characterisation method. Faced with the law of obligations, the lege fori characterisation shows its weaknesses. It is suffering from an original defect which prompts interrogations on its merits. Even relaxed, the lege fori characterisation cannot be detached from the concepts of the lex fori. An international situation will therefore be resolved according to concepts dictated based on the needs of the law of the forum. Such inadequacies can be observed when studying hybrid cases. Hybrid cases hypotheses are extremely difficult to classify as they stand on the border between matters relating to tort/delict and matters relating to contracts. The present study will search for a characterisation model able to fulfil the international function of the rule to apply. A European understanding of characterisation exists beside the lege fori characterisation. It revolves around the elaboration of autonomous characterisations, in principle distinct from the lege fori characterisation. The European Court of Justice chose an autonomous characterisation for the notions of matter relating to contract and matter relating to tort/delict. Faced with the lege fori characterisation, the autonomous characterisation reveals its true nature. In some respects, it is a type of lege fori characterisation. From another perspective, it diverges from it and can be interpreted as a true international characterisation. Unlike the lege fori characterisation, the autonomous characterisation fulfils the international function of the private international law rule. Therefore, it is suitable to the needs of international affairs. Once the merits of the autonomous approach have been established, it is necessary to consider whether it can be generalized or not. Indeed, the adoption of a complete set of rules in European private international law relating to contractual and non-contractual obligations highlights a debate on the opportunity to adopt a unitary characterisation for the common notions of the Rome and Brussels Conventions and Regulations. The present study suggests to consider an autonomous and monistic model for characterisation but only to the extent international relations are involved.
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| 36 |
A critical analysis of the doctor-patient relationship in context of the right to adequate health careKeevy, Daniel Matthew John 28 May 2013 (has links)
The purpose of this thesis is to prove the existence of the right to adequate healthcare through a critical analysis of the law of obligations, constitutional law and international law framed in the wider focal point of South African medical law. The Constitution only makes provision for the right to access to health care. Conclusively this thesis will have to establish a link between a minimum standard in health care and the Constitution. It is submitted that the most efficacious method of establishing this link is with the duty of care, which is intrinsically linked to the doctor-patient relationship. If a critical analysis of the doctor-patient relationship can establish a clear link between the duty of care and state liability then such a link can successfully be applied to the Constitution. If this link is transposed onto the Constitution, a critical evaluation of the rights in the Bill of Rights will then reveal the most applicable right that can house the right to an adequate standard of health care. Such an analysis is only part of the solution however. In order to make this right effective, the international body of medical laws must be critically analysed and juxtaposed against this adequate standard. This carries the dual purpose of adding normative content as well as determining the current state of South Africa’s obligations under international human rights law, and to what extent those obligations have been discharged. Finally, and most significantly, the right to adequate healthcare, as it was forged in the international legal analysis, will be transposed onto the current South African jurisprudence of socio-economic rights. This practical application will then be reflected onto the new National Health Care Insurance to show conclusively that the current governmental approach of effecting health care is wholly inoperable and will ultimately result in significant harm and extensive human rights violations. This is based on the government only considering access to health care sufficient to discharge its duties and being totally incapable of effectively managing its resources. The core outcome for this thesis is to prove the existence of the right to adequate healthcare. Secondary outcomes are tracing the history of medicine to illustrate the creation and evolution of the doctor-patient relationship, a critical analysis of the application of medical ethics to South African law of obligations, a critical analysis of the Constitution and its fundamentals, an exhaustive evaluation of South Africa’s duties and accomplishments under its international obligations and effectively applying the right to adequate healthcare which is diametrically opposed to the current course South Africa is taking to provide health care. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted
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| 37 |
Legal and regulatory aspects of mobile financial servicesPerlman, Leon Joseph 11 1900 (has links)
The thesis deals with the emergence of bank and non-bank entities that provide a range of unique
transaction-based payment services broadly called Mobile Financial Services (MFS) to unbanked,
underserved and underbanked persons via mobile phones.
Models of MFS from Mobile Network Operators (MNOs), banks, combinations of MNOs and banks, and
independent Mobile Financial Services Providers are covered. Provision by non-banks of ‘bank-type’
services via mobile phones has been termed ‘transformational banking’ versus the ‘additive banking’
services from banks. All involve the concept of ‘branchless banking’ whereby ‘cash-in/cash out’ services
are provided through ‘agents.’
Funds for MFS payments may available through a Stored Value Product (SVP), particularly through a
Stored Value Account SVP variant offered by MNOs where value is stored as a redeemable fiat- or mobile
‘airtime’-based Store of Value.
The competitive, legal, technical and regulatory nature of non-bank versus bank MFS models is discussed,
in particular the impact of banking, payments, money laundering, telecommunications, e-commerce and
consumer protection laws. Whether funding mechanisms for SVPs may amount to deposit-taking such that
entities could be engaged in the ‘business of banking’ is discussed. The continued use of ‘deposit’ as the
traditional trigger for the ‘business of banking’ is investigated, alongside whether transaction and paymentcentric
MFS rises to the ‘business of banking.’
An extensive evaluation of ‘money’ based on the Orthodox and Claim School economic theories is
undertaken in relation to SVPs used in MFS, their legal associations and import, and whether they may be
deemed ‘money’ in law.
Consumer protection for MFS and payments generally through current statute, contract, and payment law
and common law condictiones are found to be wanting. Possible regulatory arbitrage in relation to MFS in
South African law is discussed.
The legal and regulatory regimes in the European Union, Kenya and the United States of America are
compared with South Africa. The need for a coordinated payments-specific law that has consumer
protections, enables proportional risk-based licensing of new non-bank providers of MFS, and allows for a
regulator for retail payments is recommended. The use of trust companies and trust accounts is
recommended for protection of user funds.
| vi / Public, Constitutional and International Law / LLD
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| 38 |
Legal and regulatory aspects of mobile financial servicesPerlman, Leon Joseph 11 1900 (has links)
The thesis deals with the emergence of bank and non-bank entities that provide a range of unique
transaction-based payment services broadly called Mobile Financial Services (MFS) to unbanked,
underserved and underbanked persons via mobile phones.
Models of MFS from Mobile Network Operators (MNOs), banks, combinations of MNOs and banks, and
independent Mobile Financial Services Providers are covered. Provision by non-banks of ‘bank-type’
services via mobile phones has been termed ‘transformational banking’ versus the ‘additive banking’
services from banks. All involve the concept of ‘branchless banking’ whereby ‘cash-in/cash out’ services
are provided through ‘agents.’
Funds for MFS payments may available through a Stored Value Product (SVP), particularly through a
Stored Value Account SVP variant offered by MNOs where value is stored as a redeemable fiat- or mobile
‘airtime’-based Store of Value.
The competitive, legal, technical and regulatory nature of non-bank versus bank MFS models is discussed,
in particular the impact of banking, payments, money laundering, telecommunications, e-commerce and
consumer protection laws. Whether funding mechanisms for SVPs may amount to deposit-taking such that
entities could be engaged in the ‘business of banking’ is discussed. The continued use of ‘deposit’ as the
traditional trigger for the ‘business of banking’ is investigated, alongside whether transaction and paymentcentric
MFS rises to the ‘business of banking.’
An extensive evaluation of ‘money’ based on the Orthodox and Claim School economic theories is
undertaken in relation to SVPs used in MFS, their legal associations and import, and whether they may be
deemed ‘money’ in law.
Consumer protection for MFS and payments generally through current statute, contract, and payment law
and common law condictiones are found to be wanting. Possible regulatory arbitrage in relation to MFS in
South African law is discussed.
The legal and regulatory regimes in the European Union, Kenya and the United States of America are
compared with South Africa. The need for a coordinated payments-specific law that has consumer
protections, enables proportional risk-based licensing of new non-bank providers of MFS, and allows for a
regulator for retail payments is recommended. The use of trust companies and trust accounts is
recommended for protection of user funds.
| vi / Public, Constitutional and International Law / LL. D.
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