The objective of this treatise is to establish whether a right to social security exists in South Africa, which would entitle HIV positive persons in South Africa citizens to medical care. A study was made of various articles in journals and on the Internet to determine the South African government's policy on a right to social security and to providing medical treatment. It was found that South Africa lacks an integrated, holistic approach to social security and does not guarantee the right to social security, merely the right to have access to social security. The same was found with the right to medical care. Although there seems to be a general right to medical care which extends to and includes HIV-positive patients, the state merely guarantees the right to apply for medical treatment but does not guarantee the granting thereof. It is submitted that the Department of Health's refusal to implement a vertical transmission prevention programme and the failure to offer treatment as an alternative, for whatever reason, is "penny wise and pound foolish". In the long run more money is spent dealing with pediatric AIDS. It was further found that although the government attempted to lay a groundwork with the formulation and acceptance of the national AIDS plan, the successful implementation thereof is seriously hindered due to the lack of inter- and intra-departmental collaboration, essential health services and funding.

This short dissertation is an appraisal of same-sex marriages. The traditional arguments against same-sex unions are examined and rejected as being circular, unconvincing and baseless. Some of the international developments on the subject of same-sex unions are examined and it is noted that a slow but distinct change in attitude towards same-sex marriages is beginning to emerge from international judiciaries. The legal position of people with same-sex orientation in the South African legal system is examined with special reference to our Constitution. It is submitted that our Constitution is the foremost vehicle for legal change in this regard and that the equality clause of our Constitution is authority for the recognition by the law of same-sex marriages. This dissertation concludes that same-sex marriages ought to be fully accepted and recognised by the law for reasons, inter alia, of fairness and equality for people of same-sex orientation. / Constitutional, International and Indigenous Law / LL. M.

Text in Afrikaans, abstract in Afrikaans and English / Die regsposisie van die deelgenote tot 'n de facto huwelik word krities ondersoek met inagneming van die huidige Suid-Afrikaanse regsposisie, oorsigtelike regsvergelyking, die morele argument, en die invloed van die Grondwet van Suid-Afrika. Die verskillende vorme van de facto huwelike in sy bree interpretasie word in oenskou geneem en die volgende verbindings word bespreek: saamwoonverhoudings; inheemsregtelike huwelike; huwelike voortspruitend uit godsdienstige tradisies; en homoseksuele huwelike. Dit word gevind dat die Suid-Afrikaanse regsposisie tans baie onbevredigend is. Sekere voorstelle vir wysigings word aan die hand gedoen, en daar word gewys op die unieke kenmerke van die Suid-Afrikaanse situasie wat in ag geneem moet word in die vorming van 'n nuwe benadering. Dit word bepleit dat die regslui die uitdaging moet aangryp en met innoverende denke 'n nuwe bestel vir die Suid-Afrikaanse reg moet skep wat buigbaar en soepel is, maar terselfdertyd regsekerheid bevorder. / The legal status of the parties to a de facto marriage is investigated, taking into consideration the present South African position, legal comparison, the moral argument, and the influence of the Constitution of South Africa. The different forms of the de facto marriage in its wide interpretation are reviewed and the following relationships are discussed: cohabitation relationships; customary marriages; marriages resulting from religious traditions; and homosexual relationships. It is found that the present South African legal position is very unsatisfactory. Several suggestions for amendments are made, and the unique characteristics of the South African situation to be taken into consideration in forming a new approach, are highlighted. It is pleaded that the legal profession accept the challenge to create, with innovation, a new system for South African law which will be flexible, but, will at the same time ensure certainty in law. / Private Law / LL. M.

South African company law is currently the object of comprehensive review. One o f the areas under scrutiny is that of corporate governance. Control over management is vital in the interests of the company itself, its shareholders and its creditors. Effective accountability should be balanced against the need to allow those who manage a certain measure of freedom and discretion in the exercise of their function. Company directors are subject to various duties. This thesis concentrates on their fiduciary obligation. It is suggested that this sui generis obligation is owed to the company as a separate entity. Interests of other groups may sometimes merit con­ sideration. Against the background o f a com parative investigation, a "corporate opportunity" is defined as any property or economic opportunity to which the com­ pany has a claim. South African law protects a company’s claim to an opportunity if it is in the company’s line of business and if the company has justifiably been relying upon the director(s) to acquire it or to assist in its acquisition for the company. The application of established fiduciary principles suffice to resolve corporate opportunity matters. Essentially the application o f these rules amount to a determination whether the director has complied with his fundamental duty to act in the company’s best interests. There seems to be no need for a separate doctrine of corporate opportunities.' A director should only be absolved from liability on account of the company’s inability to pursue an opportunity or its rejection by the company if there was no real conflict of interest. The appropriation of corporate opportunities should not be ratifiable, both because the ratification constitutes a fraud on the minority, and because the decision to ratify cannot be regarded as being in the interests of the company. The relationship between the appropriation of corporate opportunities, misuse of confidential information and competition is investigated. These aspects fre­ quently overlap, but should be distinguished because their bases, and accordingly their appropriate remedies, may differ. Effective control may benefit by a restatement of directors’ fiduciary duties in the Companies Act. To this end certain amendments to the Act are recommended. / Mercantile Law / LLD

LL.M. / Please refer to full text to view abstract

The imminent recognition of an inherent Aboriginal right to selfgovernment signals the beginning of the reversal of a colonization process which threatened the cultural survival of a people. The Report of the Aboriginal Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an autonomous Aboriginal criminal justice system as a significant component of this cultural revitalization. This Aboriginal criminal justice system would differ markedly from the conventional system in giving priority to collective rights over conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal values and advocates a “tailor-made” Aboriginal charter that would incorporate “only those fundamental freedoms and civil liberties that do not violate the beliefs and paramount collective rights of the Aboriginal peoples.” The conventional justice system’s paramount concern for individual rights is premised on the potential of punishment. The Inquiry’s starkly contrasting paramount emphasis on collective rights is premised on an Aboriginal view of justice which this thesis refers to as the “harmony ethos”: The underlying philosophy in Aboriginal societies in dealing with crime was the resolution of disputes, the healing of wounds and the restoration of social harmony… Atonement and restoration of harmony were the goals - not punishment. The tension between individual and collective rights apparent in the proposal of the Inquiry is the specific focus of this thesis. The colonization process may justify a separate Aboriginal justice system. However, the harmony ethos premise, while appropriate to the mediation-reconciliation communitarian model of justice advocated by the Inquiry, blinds the Inquiry to the additional, and crucially different, adjudicative-rights imperatives of the contemporary Aboriginal society. Actually existing Indianism reveals conflict-generating fault lines in the harmony premise which challenge the sufficiency of the Inquiry’s group-based justice paradigm and indicate a need and desire for an adjudication justice component and concomitant Charter values. This adjudication hiatus in the Inquiry position is a reflection of a similar void in historical Aboriginal justice which challenges the asserted rationale of cultural survival for the paramountcy of collective rights in the contemporary Aboriginal justice system. This historical adjudication hiatus does not preclude a separate Aboriginal justice system, but favours the inclusion of Charter values to strengthen an adjudication cultural foundation which is frail relative to its reconciliation-mediation strength. This thesis is a modest attempt to address the interface between two systems; one mature, but in need of change, the other, fledging and in need of assistance. The Charter provides a ready and flexible framework to join the Aboriginal community both to the larger society and to the unlanded Aboriginal diaspora by principled standards of justice. These fundamental indicia of fairness, recognized by all civilized self-governing units, constitute no significant threat to the cultural survival of the Aboriginal mediation justice heritage, while buttressing its inherent adjudication frailty. / Law, Peter A. Allard School of / Graduate

A serious problem confronts the psychologist whose patient threatens, within the privacy of a therapy session, to inflict violent harm upon some third person. Therapists in Texas face a risk of unjust legal liability because of a lack of widely accepted, clearly and fully articulated standards. A questionnaire was submitted to Texas psychologists and Texas judges of mental illness courts. It involved a hypothetical case of a patient who threatened to kill his girlfriend. The hypothesis that no consensus exists at present among psychologists or judges appears to be supported by the data. Comparisons are made of the attitudes of psychologists and judges. Correlations between psychologist attitudes and certain demographic and practice variables are reported. The need for new legislation in Texas concerning legal liability of therapists for the violent behavior of patients is discussed. Proposed legislation for Texas is set out. Among its important features are (1) recognition that continued therapy is itself a protective strategy and (2) establishment of good faith as the standard by which the behavior of the therapist is to be judged.

No description available.

No description available.

The South African Refugees Act1 makes a distinction between an asylum seeker and a refugee. The Act defines an asylum seeker as “a person who is seeking recognition as a refugee in the Republic”. A refugee on the other hand, is a person “who has been granted asylum” in the Republic.2 The legal position in South Africa is that before a person is recognized as a refugee, he or she is protected by the Bill of Rights to a certain extent. In the case of Lawyers for Human Rights v Minister of Home Affairs the Constitutional court confirmed that the protection afforded by the Bill of Rights applies to everyone, including illegal foreigners and asylum seekers.3 This means that asylum seekers and refugees are entitled to most of the rights in the Constitution except those specifically reserved for citizens. Practically though, a refugee enjoys more rights than an asylum seeker. It is therefore in the interest of asylum seekers to have their status as refugees determined. The process of applying for refugee status can be a challenge for those seeking refuge in the Republic of South Africa. For applicants coming from non-English speaking countries, language barrier can also present its own challenges. In terms of the Refugees Act, the first application is to the Refugee Reception Officer at the refugee reception office. The application must be made in person.4 When an asylum seeker is deemed fit to qualify for asylum, he or she will be issued with a permit in terms of section 22 of the Refugees Act. The permit allows the asylum seeker to temporarily reside in South Africa until the finalisation of the asylum claim. This permit does not mean that the asylum seeker is already recognised as a refugee. The permit is an indication that the asylum seeker’s application as a refugee is not yet finalised. The application is considered finalised when it has gone through the hearing before the Status Determination Officer and any review or appeal following from that decision. It is the Refugee Status Determination Officer who will grant asylum or reject the application.5 For people applying for refugee status, the determination by the Status Determination Officer may in itself mark the beginning of the process to be repatriated back to the country they were running away from in the first place. An aggrieved applicant can also apply to have the adverse decision reviewed or even lodge an appeal in accordance with the provisions of the Refugees Act.6 For as long as the application is still pending, the government cannot deport any asylum seeker. An asylum seeker who enters the Republic of South Africa, either through a port of entry or illegally faces many challenges before he or she could reach a refugee reception office. Those who come in through a port of entry face being turned away by Immigration Officers due to lack of documentation. Often, asylum seekers find it hard to reach the refugee reception offices as there is no co-operation between the Immigration Officers, the South African Police Service and the functionaries in the refugee reception offices. To make things worse, the Immigration Amendment Act has reduced the days from fourteen to five, for asylum seekers without valid documentations to reach any refugee reception office. Since refugee reception offices are located only in five cities in the country, these have conditioned asylum seekers and refugees to stay and make their living in those cities as they are required to make frequent renewal of their permit. The closure of some of the refugee reception offices like the Johannesburg refugee reception office has caused a major concern to asylum seekers and refugees. This persistent closure of refugee reception offices may be seen as a further persecution in the eyes of asylum seekers and refugees. The inability of the different functionaries to differentiate between asylum seekers and economic migrants adds to the problem concerning the process of refugee status determination. Instead of seeking to identify people in need of protection from persecution or events seriously disturbing public order, the process is used as an immigration control and this causes more people to be turned away or returned to countries where their lives may be at risk. The communication between the asylum seeker and all the functionaries of the Department of Home Affairs is very important. The lack of professional interpretation functionaries to help asylum seekers who need interpretation contributes to the problems asylum seekers face. Often, asylum seekers have to provide their own interpreters if the Department is unable to do so. The purpose of the study is to investigate the status determination process from a South African perspective and to make recommendations which will try to resolve the problem(s) identified. / Public, Constitutional, & International / LLM