The following is a study and comparison of the various types of surrogacy currently being implemented locally and internationally and the laws surrounding it. I discuss the current South African legal framework on surrogacy and summarise the relevant legislative provisions whilst also further discussing the provisions prohibiting commercial surrogacy and the reasons behind them. Thereafter an investigation follows into other counties in respect of their individual laws regulating surrogacy and more specifically, commercial surrogacy. I discuss how these countries attempted to regulate commercial surrogacy and which regulations were a success and which weren‘t. The various international laws and regulations surrounding surrogacy as well as commercial surrogacy is then compared and discussed in a South African context. A discussion on the intertwined constitutional rights of the surrogate mother, commissioning parents and child follows and in conclusion I offer some recommendations on how to go about legalising commercial surrogacy safely and successfully implementing it free from exploitation. / Private Law / LL.M. (Specialisation in Private Law)

Eritrean refugees are compelled to flee their country mainly to avoid forced conscription into indefinite military service, arbitrary arrest and detention for prolonged periods without trial. The majority of Eritrean refugees are young people, who leave their country in search of a better life and sources of livelihoods. The mass migration of Eritrean refugees has started to have adverse effects on the country’s socio-economic landscape. The main destination and country of refuge for the majority of Eritrean refugees is Ethiopia. Although no serious violations of human rights have been reported among Eritrean refugees living in Ethiopia, it a well-known fact that the Ethiopian Government has not fully extended the internationally accepted rights of those who have been forced to flee their own states, to refugees. For example, freedom of movement for refugees is restricted, which is obviously compounded by the encampment policy, which requires that all refugees should be confined to designated refugee camps. This situation seriously undermines the UNHCR’s efforts to enhance refugees’ self-reliance, independence, and chances of local integration. There has not been much research undertaken regarding the Ethiopian Government’s legal framework on refugees and its impact on the protection of the rights of refugees. In 2014, Ethiopia hosted the largest number of refugees in Africa. This phenomenon was largely attributed to the Ethiopian Government’s ‘open door’ policy towards refugees. The present study is an attempt to critically examine Ethiopian refugee law and determine the extent to which the national laws protect the rights of refugees. Although the study is limited in scope to the situation of Eritrean refugees, the principles and standards of treatment discussed apply to all refugees living in Ethiopia. / Public, Constitutional and International Law / LL. M.

Text in Afrikaans / This study is about the provision of a prototype court preparation programme for the primary school child that had been sexually assaulted. The programme is developed from a Gestalt approach. Literature regarding several existing court preparation programmes was studied and compared in order to identify certain themes for the child's preparation. Knowledge regarding the court, procedures and the functions of the various role players was conveyed to the child with emphasis on the child's role as witness. The research strategy utilised in the study was that of the intervention research and specifically the D&D-model that comprises six phases. The study incorporates the first three phases plus the first step of the fourth phase. Semi-structured interviews and focus groups were utilised to establish which themes could be addressed to support the child towards being a credible witness. These themes are summarised in the court preparation programme and are addressed from the Gestalt approach. / Social Work / M.Diac. (Spelterapie)

This dissertation looks at the position of the unmarried father in South Africa with regard to obtaining access to his illegitimate child. The writer has focused on three distinct eras in South African family law: the position of unmarried fathers in terms of: the common law; Natural Fathers of Children Born out of Wedlock Act; and the Children's Act. The writer has further focused on a case study. This is to emphasis the difficulty which unmarried fathers have when attempting to go through the courts to have access to his child. In terms of South African common law, fathers of illegitimate children did not have any form of parental authority over the child. The mothers of illegitimate children have full parental authority over such children. Access in terms of South African common-law is seen as an incident of parental authority. Unmarried fathers nevertheless had the right to approach the high court to obtain access to their children, if the mother of the child refuses to allow the father to have such access. In the late 1980's and early 1990's, there was an overwhelming amount of applications brought by unmarried fathers in the high courts so as to obtain access to their illegitimate children. The case of Van Erk v Holmer 1992 (2) SA 636 (W) sparked victory for unmarried fathers when the learned judge held that all unmarried fathers of children have an inherent right of access to their children. This victory was short-lived. Subsequent case law and in particular the case of B v S 1995 (3) SA 571 (A) enforced the common law and held that unmarried fathers do not have an automatic right to their illegitimate children and that such fathers will have to apply to the high court for such access. Due to the increase in litigation in the late 1980's and early 1990's regarding a father's access to his child born out of wedlock the Natural Fathers of Children Born out of Wedlock Act commenced on 4 September 1998. The South African legislature adopted the approach taken in the case of B v S 1995 (3) SA 571 (A) and rejected the approach taken in the case of Van Erk v Holmer 1992 (2) SA 636 (W) ie the common law continued to remain the approach taken in South Africa. Legislators recognised that the approach taken in the Natural Fathers of Children Born out of Wedlock Act does not conform to the provisions of the African Charter of the Rights and the Welfare of the Child, the United Nations Convention on the Rights of the Child and equality and dignity provisions of the Constitution of the Republic of South Africa. On 19 June 2006, the Children's Act was effected and will commence once promulgated in the Government Gazette. The writer then determines whether the Children's Act has in practice changed the position of the unmarried father. / JURISPRUDENCE / LLM

The best interests of the child are paramount in every matter concerning the child. This applies in the case of adoption of a child as well. When an adoption is intercultural, culture is an issue to be taken into account. This study is undertaken to consider the role that culture should play in a decision whether an adoption is in the best interests of the child. In order to determine whether intercultural adoption is a viable option that serves the best interests of the child, interracial adoption also needs to be focused on, as intercultural adoption is often also interracial. The research for this thesis is done from a South African legal perspective, although some interdisciplinary and international research is necessary as well. A brief historical overview of adoption in South Africa is undertaken, as it is important to have some background knowledge about adoption in South Africa in order to understand why race and culture are relevant in the South African adoptive system. The role of the family in the life of the child is investigated. The difference between family care, parental care and alternative care is researched. Thereafter the role of emotional bonding for a child, also known as attachment, is focused on. An important question is whether race and culture is the same thing. This is researched, whereafter the role of race and culture in the adoption process is investigated. The relevant provisions of the Child Care Act 74 of 1983,which regulates adoption in South Africa, are compared to the relevant provisions of the Children’s Act 38 of 2005, which will regulate adoption in South Africa soon. Finally, some conclusions are drawn, shortcomings are highlighted and possible solutions are suggested. The outcome of this thesis should provide some guidance to those involved in the adoption process with regard to the factors that are important in determining the best interests of the child in an intercultural adoption. / Law / LL.D.

With the advent of a new constitutional dispensation in South Africa, intimate relationships that were not formally recognised, such as customary marriages, became fully recognised through designated legislation. Domestic partnerships are, however, afforded only limited recognition despite compelling reasons that lead people to domestic partnerships. Domestic partners are also discriminated against based on marital status despite a Constitution that forbids discrimination based on equality, human dignity and marital status. The object of this study is to investigate whether there are sufficient grounds to afford domestic partnerships full recognition similar to that granted to civil marriage. This study includes arguments in favour and against the recognition of domestic partnerships and a discussion of the reasons that lead people into domestic partnerships. There will also be an analysis of the draft Domestic Partnership Bill 36 of 2008 to determine the suitability of the draft Bill to regulate domestic partnerships. This investigation is conducted with reference to relevant draft Bills, legislation, and case law. / Private Law / LL. M.

Despite the extensive research conducted on sexual harassment, very little work has focused on the legal and psychological constructions of women's resistance to sexual harassment. In exploring the legal and psychological constructions of women's resistance to sexual harassment, we are confronted with salient issues pertaining to the determination of the welcomeness requirement which call for a reflection. A key characteristic of sexual harassment is that it is unwanted by the recipient. It is for each person to decide what behaviour is acceptable to them and what they regard as offensive. Thus, although there is general agreement about what can constitute sexual harassment, the experience of sexual harassment is subjective in nature and the precise quantification of workplace sexual harassment is problematic. The present study aims to: (a) identify the reasoning/history behind the "unwelcomeness/unwanted" requirement, (b) assess the reasonableness of· the requirement of "unwelcomeness/unwanted" conduct, taking into account the various pieces of legislation and case law, (c) determine how the courts have interpreted this requirement and what factors are looked at, (d) determine whether the test is subjective or objective, (e) identify the struggle and debilitating effects sexual harassment has on women in the workplace. The results of this study will assist in gaining knowledge and understanding of the concept of "unwelcomeness/unwanted" conduct in sexual harassment cases and the effects it has on the victim which will go a long way in assisting management in any business to effectively implement strategies and disciplines to manage the problem of sexual harassment in the workplace. / Private Law / LLM (Labour Law)

Doctorat en sciences sociales, politiques et économiques / info:eu-repo/semantics/nonPublished

This study surveyed 107 working college students with varying disabilities. Individual, job, and organizational characteristics were evaluated for their ability to predict job satisfaction, organizational commitment, and turnover cognitions. One area this characteristic that was explored was that of an individual's perception of organizational resources related to legally mandated reasonable accommodations. Using hierarchal regression this study found that self-efficacy, job characteristics, and means-efficacy were key predictors of job satisfaction. Means-efficacy was the only one of these that was a predictor of turnover intentions.

This research is aimed at evaluating the adequacy and effectiveness of the legal framework dealing with human trafficking in South Africa. To achieve this purpose, a comprehensive diachronic as well as contemporary overview of the punishment and prevention of human trafficking in South Africa as well as in the legal systems of the US, Germany and Nigeria is provided. An overview of the history of slavery and an analysis of the modern conceptualisation of human trafficking indicate that human trafficking is a highly complex concept, and that there are various approaches to the understanding of the concept of human trafficking. There are various definitions of trafficking found in international instruments of which the most important has been identified as that contained in the Palermo Protocol. The definitions vary also because trafficking is closely related to the phenomena of migration, slavery and smuggling of humans. The study further identifies some significant root causes of trafficking generally, as well as specific, to the four selected regions. It was found that in South Africa – similar to the history of slavery in the jurisdictions of the US, Germany and Nigeria – colonisation and the institution of slavery and, more particularly in South Africa, the legacy of the apartheid regime has had an impact on modern human trafficking. The research concedes that although common-law crimes, statutes and transitional legislation can be utilized to challenge some trafficking elements, these offences are not comprehensive enough to amply deal with the crime’s complexities and provide only a fragmented approach to combating the crime. The study shows that South Africa needs to adopt specific and comprehensive anti-trafficking legislation that is based essentially on the provisions of the Palermo Protocol, that is, the draft TIP Bill. Although the Bill is a major improvement on the provisions in the Palermo Protocol as well as on certain aspects of the anti-trafficking legislation in the US, Germany and Nigeria, the Bill can still be improved, especially with regard to more effective victim assistance and the combating of local-specific vulnerability factors. Anti-trafficking efforts undertaken in the US, Germany and Nigeria which may be of value also for the adoption of anti-trafficking legislation, law enforcement and other strategies in South Africa, are further identified. iv The research further establishes also that international, regional and sub-regional instruments on trafficking and related aspects of trafficking provide guidelines for developing effective strategies to deal with trafficking within the region. The counter-trafficking strategies as found in treaties (including conventions), protocols, declarations and resolutions – those focussing specifically on combating trafficking and those with a human-rights focus – oblige states to prosecute traffickers, protect people vulnerable to trafficking as well as those already trafficked and create structures for prevention. Regional instruments specifically formulated to combat trafficking as well as instruments that make reference to the issue of trafficking in persons may further provide the basis for long-term strategies to combat human trafficking. However, it was found that although South Africa has adopted many cooperative mechanisms in the form of direct bilateral or multilateral agreements, as well as international and regional treaties and conventions, the jurisdiction has not as yet implemented comprehensive strategies to combat human trafficking. The introduction of legislation to combat human trafficking, and various other strategies envisaged in the TIP Bill and also recommendations suggested in this thesis, should be considered by parliament as a matter of priority. A comprehensive response to human trafficking which includes adequate protection of victims is required in terms of various constitutional imperatives identified in this research. / Criminal and Procedural Law / LL. D.