South Africa's rich mineral endowment makes it a geologically favourable country for investment in its mining industry. However, even countries with geologically favourable conditions will not attract investment in its mining sector if the regulatory regime does not provide certainty and stability. One aspect of such a regulatory regime is the provision of mineral tenure security. Studies indicate that strong mineral tenure security is an important factor that investors take into account before investing is a country's mining industry. For example a study by J.M Otto found that out of a possible sixty factors influencing investment decisions, security of tenure was ranked second during the exploration phase and first during the mining phase. Conceptually, mineral tenure security defies a single definition. The concept requires certainty and stability of rights through the entire mining sequence with the aim of providing the best opportunity for right holders and investors to develop mines profitably and to maximise returns on investments. In this sense, mineral tenure security requires minimisation of risks and uncertainties that may prevent profitable development of mines and maximising returns on investments. The specific requirements for strong mineral tenure security depends on the theoretical underpinnings of the regulatory regime. This thesis argues that it is likely that in regimes with a strong private-law character, private-law rules will be significant for providing mineral tenure security. Conversely, in regimes with a strong public-law character, it is likely that private-law rules will not be central to the provision of mineral tenure security. In regimes with a strong public-law character, rules of administrative law, for example, are more likely to be significant for providing mineral tenure security. The Mineral and Petroleum Resources Development Act (MPRDA) came into operation in 2002. This thesis demonstrates that the Act brought about significant changes to the theoretical landscape of mineral law. Before the MPRDA, the regime pertaining to minerals was based on a combination of private holding and public administration of rights to minerals. The Act changed this landscape to one that is based predominantly in public law. Against this background, this thesis follows two courses of inquiry; the first with a mainly theoretical character and the second with a mainly practical character. The first (theoretical) course of inquiry investigates whether the private-law concepts that are traditionally associated with mineral tenure security, namely ownership of minerals and mineral resources and real rights in property, continue to strengthen mineral tenure security in the current regulatory regime. This course of inquiry also investigates the limitation of a private-law based approach to mineral tenure security. The second (practical) course of inquiry investigates how the current predominantly administrative regime strengthens mineral tenure security. The second course of inquiry attempts to identify the shortcomings of the current regulatory regime in strengthening mineral tenure security and also attempts to provide a set of solutions for these shortcomings.

This thesis concerns the rise of transparency as a discursive fact of modern society. It seeks to understand both why and how the concept has come to be dominant within global neoliberal capitalism. From governments and political parties, to businesses and non-profit organisations, diverse institutions across the globe are embracing 'transparency'. Yet, despite its prominence, transparency remains vague and undefined, with scholarship largely devoted to expressing its merits and exploring ways to strengthen its practice. This has allowed transparency to gain its discursive power and, eventually, to become dominant. I turn to the work of Michel Foucault to problematise the transparency discourse with a view to unravel the effects of its discursive power. Through a Foucaultian critique, I come to read transparency as a depoliticising régime of truth ‒ one that is part and parcel of the Western will-to-power of neoliberalism, which excludes and, within this exclusion, contains, other realities. I identify transparency as an elusive and abstract metaphor, while defining it as a discursive practice of 'making visible'. My analysis follows the Foucaultian lines of archaeology, discourse, and governmentality, drawing these analytical strands together into a genealogy of transparency. The thesis notes the historical arrival of transparency within an ocularcentric episteme of the Western Enlightenment which privileges ideas of visibility ‒ an episteme from which neoliberalism also arises. I continue to trace the proselytisation of transparency upon the Global South, and its de-legitimisation of other forms of governance. The analysis then explores how transparency works within a dispositif (a relational field of power) of the current neoliberalist moment, creating a depoliticising illusion of a society that can be seen, known and understood. Further, I discuss how transparency is seeking to produce transparent subjects who are made visible to the disciplining powers of its discourse. In conclusion, my enquiry raises questions about an affinity between transparency and a hegemonic neo-colonial project to fashion a world in its own image: in the image of whiteness – a homogenous and de-politicised centre from which all else 'deviates'. Yet, I note a profound paradox at play. For transparency signals a marked absence, a paradoxical invisibility. Thus, as it seeks to create a world after its own image, it is in fact working towards its own inevitable unworking and absence.

In an eviction matter, the court is required to consider all relevant circumstances and grant an order that is just and equitable. An important relevant circumstance to be considered is whether the unlawful occupiers have alternative accommodation. Courts are reluctant to grant eviction orders that would leave the unlawful occupiers homeless. In matters where unlawful occupiers are unable to secure their own alternative accommodation, courts often look to the state to provide alternative accommodation. Courts have ordered the state to provide alternative accommodation to the unlawful occupiers in certain cases as a condition of the eviction order (an alternative accommodation order). This thesis seeks to determine when an alternative accommodation order as a condition to the eviction of unlawful occupiers in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE) would comply with the court's constitutional mandate. Two criteria are determined against which to test whether alternative accommodation orders comply with the court's constitutional mandate. First, the court's constitutional mandate requires that its orders adhere to the existing legal framework. Second, the court's constitutional mandate requires that its orders respect the functions of the branches of government. An alternative accommodation order would only adhere to the legal framework if there is a valid ground for placing this duty on the state. The possible grounds for holding the state liable relate to its constitutional duty to respect, protect, promote and fulfil human rights. One possible ground relates to the state's duty to fulfil the unlawful occupiers' right of access to adequate housing by implementing reasonable short-term housing programmes. Hence, whether the state has a duty to accommodate the unlawful occupiers within its short-term housing programme is a relevant circumstance to be considered by the court. A finding that the state has a duty to accommodate the unlawful occupiers, immediately, is likely to lead to an eviction with an order against the state to provide alternative accommodation, regardless of the other circumstances. If the state does not have a duty to accommodate the unlawful occupiers immediately in terms of its duty to fulfil human rights, its liability to provide alternative accommodation might still be found on its duty to respect and protect human rights. This is because, under some circumstances, the granting of an eviction order that results in homelessness might violate the rights of the unlawful occupiers, whereas a denial of the eviction or a delay in the granting or execution of an eviction order might violate the rights of the landowner. Placing the duty on the state to prevent or mitigate the violation by compensating either of the parties could be justified due to the state's duty to respect and protect human rights. As an alternative to compensation, a court could order the state to provide alternative accommodation to the unlawful occupiers. These two possible grounds for alternative accommodation orders are analysed to determine when alternative accommodation orders based on these grounds would adhere to the existing legal framework and respect the functions of the branches of government. These grounds are likely to have the same outcome. For both grounds, certain factors weigh heavily against an alternative accommodation order: blameworthiness on the part of the unlawful occupiers, a lack of blameworthiness on the part of the state, a finding that the state's limited resources should rather be spent on others who are needier or more deserving. In the conclusion of the thesis, recommendations are made regarding two problem areas in granting alternative accommodation orders in eviction matters - the availability of state resources and the burden of proof.

Includes abstract. / Includes bibliographical references (p. 246-263). / Parties to a contract base their consensus on the facts known to them at the time of contracting - should there be an unforeseen change in these circumstances, it may no longer be just for one party to enforce the agreement against the other. Because the losses and gains consequent upon a change in circumstances occur by chance, it is not fair to place the resultant burden on one party alone.

This thesis examines and evaluates the legal protection of privacy and personal data in South Africa and across Africa in the electronic health care industry, that is, where medical services are provided to individuals by way of networked technological platforms including mobile telephones. This thesis presents a critical understanding of, and pragmatic solution to, the questions that lie at the intersection of the following: an individual's right to privacy and data protection, cultural disparities when defining privacy, the emergence of electronic health care, the sensitivity of health related data, the need for health care in areas, where lack of resources and lack of accessibility are often commonplace, and the introduction of networked technologies within the health care system as a solution. Firstly, eHealth services and applications are described. Secondly, notions of privacy and data protection are considered. Thirdly, the prevailing legal determinants that form the basis of African and South African data protection regulatory measures are ascertained. Fourthly, selected illustrations are presented of the practical implementation of eHealth services and certain recent influencers within the digital environment, which may inform the future eHealth privacy regulatory framework. Finally, criticisms of the Malabo Convention are presented and recommendations advanced. As there is limited guidance with regard to policymaking decisions concerning privacy and data protection in the implementation of eHealth in developing countries, possibilities for reform are suggested. These will allow a more careful balance between, on the one hand, the normative commitment to providing accessible health care using electronic means and, on the other, the rights to privacy and data protection of the user, which require safeguarding within an African context. In proposing a solution, it is argued that adequate privacy regulation of electronic health must (1) be sensitive to societal and cultural differences in what is considered private, (2) be responsive to rapid technological transformation in healthcare industries, and (3) build user confidence in data protection in this context, to enable nascent electronic health initiatives to reach their potential in Africa. It is proposed that the adoption of an accepted social imperative protected by a powerful triumvirate of ethical constraints, effective legal provisions and regulations, and operational necessities, is possible. Greater regulatory collaboration across the continent is called for based on harmonised domestic and international laws, national policies, and industry codes of conduct that are sensitive to local conditions and challenges.

Drawing upon the work of Bruno Latour, this dissertation defends the thesis that the law is a factish: an indivisible blend of social and natural reality. The dissertation develops, in Latour's terms, a "non-modern" framework from which it draws, in turn, the philosophical foundations for a theory of factish law. This framework is presented as a paradoxical model of understanding, which situates the law within a broader understanding of reality. The model allows for several distinctions of modern analytical philosophy to be breached, without succumbing to a post-modern paralysis of thought. Applied within jurisprudence, it allows for an account of the law as factish that avoids the clash between positivism and natural law, preferring instead to draw upon insights from each tradition. This factish understanding of the law founds several related observations that together constitute the formative steps towards a theory of factish law. Instead of viewing the law as completely unique, the aspiration towards inviolability is identified as a central attribute of law, shared by actors as diverse as the laws of physics and the laws of the State, whilst the absence of this aspiration from customary law distinguishes it from the law without needing to create an implicit hierarchy of normative systems. Having explicated factish law, the dissertation moves to a proposed model of factish legality, drawing upon the model of paradoxical understanding, in order to explain the process by which the law is created. Alternate understandings of the rule of law and the separation of powers are posited in accordance with this model, as opposed to the dominant views expressed by South African jurists. Having established some of the theoretical commitments of factish law, the dissertation then focuses on the question of justifying the law in South Africa. In the course of the argument, the relationship between law and violence, the distortionary effects of South Africa‟s celebrated Bill of Rights and the contemporary demand for "African" South African law are considered and critiqued.

Includes abstract. / This work examines the change-of-position (loss of enrichment) defence comparatively in five jurisdictions, namely South Africa, Brazil, England Canada and USA. It advances a three-part argument which contends, first, that when a legal system opts for a general enrichment principle, it must equally limit it with defences. Secondly, that once the limiting mechanisms are chosen, the system must demarcate their contours and establish the inevitable exceptions. Thirdly, that legal system, as a consequence, must also decide whether to require a symmetric ‘gain-loss’ situation, i.e., whether to insist that the measure of recovery be limited by the plaintiff’s loss. If it chooses a symmetry ‘gainloss’, that system might face difficulties avoiding a passing on defence, as the reverse face of change-of-position on the plaintiff’s side, thereby potentially undermining indirectly the principle of legality. If it departs from that symmetry, the passing on defence may ‘normatively’ be ignored, unless for policy reasons it opts to have it. The study concludes that South Africa is bound to adopt explicitly a general principle of unjustified enrichment with change of position as the general defence applicable to all unjustified enrichment claims, save to claims arising from failed bilateral agreements. The study recommends that South Africa may give limited recognition to the passing on defence in its private law of unjustified enrichment where policy considerations do not militate against its application.

Background Golf has become an immensely popular sport around the globe. The competitiveness of golf and the livelihood it provides to the professional players has led to copious amounts of training and individuals pushing the physiological limits of their bodies in order to play the perfect stroke. Therefore, this population is prone to injury, with prevalence of injury as high as 60%. Literature has shown the lower back to be the most frequently injured anatomical region. There is still a lack of evidence regarding the cause of these high injury rates amongst the professional golfers. Furthermore, investigation of the incidence or associated risk factors of injury has not been conducted amongst the professional players from South Africa. The importance of identifying associated risk factors of injury in this population is of vital importance as this could potentially influence their livelihood directly. Aim The aim of this study was to investigate the incidence of overall and region-specific injury in professional South African golfers. Furthermore, the potential risk factors leading to these injuries were investigated. Results 17 participants (60.7%) reported an injury and a total of 23 index injuries were documented. The incidence rate of injury was 3.27/1000hrs of playing golf. The most frequently injured anatomical regions were the lower back and shoulder (26.1%). There were statistically significant differences in the joint range of motion of horizontal adduction of the leading shoulder (p=0.04) between the group reporting an injury compared to the group with no injury. Furthermore, statistically significant differences were found in decreased range of motion of internal rotation of the trailing shoulder (p=0.04) in the group with a shoulder injury compared to the group without a shoulder injury, and as well as in the group with hip pain compared to the group without hip pain (p=0.048). The group with hip injuries also showed a decreased range of motion of external rotation of the leading hip (p=0.048). Furthermore, a decreased range of motion of external rotation of the leading shoulder had a statistically significant difference (p=0.026) between the group that reported a wrist injury and the group that did not. The group that reported lumbar spine injuries had significant decreased range of motion of external rotation in the trailing shoulder (p=0.031), horizontal adduction of the trailing shoulder (p=0.015), horizontal adduction of leading shoulder (p=0.029), and internal rotation of the leading hip (p=0.003). Furthermore, the uninjured group spent more hours on total training in the eleventh week, which also presented a statistically significant difference (p=0.03). Conclusion In conclusion, injuries amongst professional golfers are common and the anatomical regions most affected are the lower back and the shoulder. Improving the range of motion of the leading and trailing shoulder horizontal adduction, trailing shoulder internal and external rotation, and internal rotation of the leading hip range of motion by means of mobility exercises could potentially minimize the risk of sustaining injury amongst professional golfers. Training volume did not present a statistically significant difference between the injured and uninjured groups in overall or region-specific injuries.

The inevitability of the death of all property owners means that the redistribution of property at death is a basic function of the law of succession. In the systems that recognise testamentary freedom (including South Africa), the right to distribute property after death is considered as a natural extension of the entitlements that an owner enjoys while alive. Testamentary freedom is an age-old common law principle that has formed part of our law since time immemorial. This right vests in individual owners, and courts (and functionaries of the state) are obliged to give effect to the clear intentions of testators as expressed in their wills. Ownership therefore forms the basis of the right to make testamentary disposals that become enforceable after death. In this way, a primary role of testate succession law is to extend the rights of owners after death. The question this thesis seeks to answer is whether the common law right to dispose of property after death is a constitutionally protected property right in light of constitutional commitments to redistribution, restitution and historical redress. This involves an interpretation of the nature, purpose and scope of section 25 of the Constitution in the context of the common law of testate succession. In this thesis, I critique the academic and judicial view that ownership is central to the constitutional protection of the common law principle of freedom of testation. I argue that the current interpretation of the property clause represents a one-dimensional view of property rights that ignores accepted constitutional property jurisprudence of the interpretive approach to the property clause, including its dual purpose in protecting as well as transforming property relations and the emphasis on our historical context of past discrimination. In essence, my thesis is a critical evaluation of the nature and scope of testamentary freedom for the purposes of justifying the redistribution of wealth and property at death. My ultimate goal is to show that the redistribution of property through inheritance law is politically and constitutionally justified.

Beneficiation is the process whereby minerals undergo value addition before exportation. For the beneficiation process to be successful, it must be regulated effectively by legislation. The United Republic of Tanzania (Tanzania), being a resource-rich country, enacted new mining laws and regulations to improve mining activities' economic benefits. However, Tanzania continuously fails to realise the intended purpose of the new mining laws and regulations, particularly in respect of benefit sharing. The bottom line is that this country fails to acquire a fair share of its mineral resource benefits. This dissertation argues that the beneficiation of minerals is one way to enhance a host nation's economic benefits from exploiting its mineral resources. The dissertation analyses the new Tanzanian mining laws and regulations on beneficiation and discusses their shortfalls. First, this dissertation inquires how the new Tanzanian mining laws and regulations promoted minerals' beneficiation as a benefit-sharing enhancement mechanism. Second, this dissertation inquires how Tanzania can improve these laws to ensure an increased share of benefits from mineral activities. This dissertation argues that the new Tanzanian mining laws and regulations have shortfalls and practical challenges on beneficiation. This dissertation offers recommendations to the Tanzanian government to carry out beneficiation to develop Tanzania and its citizens.