The doctrine of common purpose has been subject to much criticism, especially concerning its use under apartheid. However, the doctrine predates the apartheid era and I argue that it should now be recognised as a tool to achieve justice. The constitutionality of the doctrine was confirmed in Thebus and Another v S 2003 (6) SA 505 (CC). Despite agreeing with the outcome, it is my view that the judgment would have been stronger had the Court acknowledged that, by dispensing with the requirement of causation, the doctrine must be subjected to a proportionality inquiry to determine whether there was ‘just cause' to deprive the appellants of their freedom. I argue that depriving persons who engage in joint criminal activity of their freedom is just as it is necessary to ensure crime control and safety in communities and there are no effective less restrictive means available to achieve this purpose. While misapplication of the doctrine is a legitimate concern, this does not make the doctrine itself unjust. It is incumbent upon courts to scrutinise the evidence against each accused and only convict them under the doctrine where a common purpose can be proved. The recent Constitutional Court judgment in Tshabalala v S; Ntuli v S 2020 (3) BCLR 307 (CC) expresses the importance of the doctrine in combating crimes (especially those of a sexual nature) committed by persons acting in concert. The doctrine ensures prosecution of collective criminal activity, and liability thereunder can be avoided where an accused effectively dissociates from a common purpose. It is submitted that the doctrine is a proportionate means to achieve justice and is in fact necessary in a country like South Africa, ravaged by high levels of collective criminal activity.

This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences.

Includes abstract. Includes bibliographical references (leaves 157-169).

Includes abstract. / Includes bibliographical references (leaves 143-150). / Fourteen years have passed since the first democratic election in South Africa and twelve since the enactment of the Bill of Rights and the final Constitution. In that time period, the way South Africa has been perceived both domestically and abroad has fluctuated greatly.

Includes bibliographical references (leaves 110-113). / My primary concern in this paper is to develop an account of freedom which incorporates within its very definition a moral responsibility to others, and which is therefore automatically limited by the conditions of its own exercise. It is my view that freedom, conceived in this way, leads ineluctably to a mandate to respect and promote the dignity of all others. When this freedom is objectively realised through the law in the form of direct horizontality of human rights, it breathes new life into the substantive legal revolution which took place in South Africa in 1994, and which ultimately led to the Constitution being grounded in the Fundamental principle of human dignity. My paper begins with a brief account of apartheid, focusing particularly on the way in which violent racial oppression was embodied in law. I then proceed to draw on the legal sociology of Niklas Luhmann, whose account of the legal system as a normatively closed, self-referential system produces two important insights for using the law as a tool for social justice. First, Luhrnam-1's conception of how societal sub-systems, including the law, feed off one another's complexity to generate new operations shows us that the deeply systemic nature of South Africa's socio-economic problems can be sourced in the deeply systemic nature of the apartheid laws which produced them. Vi/hat this means for us now is that the legal system as a whole cannot merely adopt a stance of neutrality and formal equality in the hope that this will produce a more equal and just society; rather, the entire legal system must make positive moves, most notably in the form of direct horizontality, to counter the ongoing effect of the morally bankrupt laws of the past. Luhmann's second insight is that the law is not inherently grounded in ethical principles, which means that the legal system often operates with harsh results for poor and disadvantaged South Africans. What this means then, is that we must find a way for the law to continually transcend itself and ground itself in substantive ethical principles, even if this endangers the continued existence of the law as a relatively autonomous, operatively closed system. My paper then proceeds to develop an account of freedom which promotes this sort of transcendence in the law. This account proceeds, in the first place, by explaining Immanuel Kant's defence of the possibility of our free will. Kant showed us that, whilst we cannot know ourselves definitively free, we can and indeed must posit ourselves as free in order to live up to the aspirations of our humanity. Kant shows further that positing ourselves as free requires that we exercise our freedom in the only meaningful way we can, which is to determine our free will on the basis of a moral law we lay down for ourselves and others. Secondly, my account draws on the work of Georg Hegel to show that freedom not only consists in relationships of mutual recognition between independent and free beings, but that we must objectively realise this freedom in our laws and institutions if it is to have any meaning for us at all, and if we are fully to live up to the demands of our free and rational nature. After having developed my account of freedom as morality in the law, I explain the true nature of direct horizontality both in theory and in practice, and show that placing legal duties on individuals to promote the well-being of others through direct horizontality is not only permissible in terms of our Constitution, but is in fact essential if we are to live up to the Constitution's mandate to respect the dignity of all others.

Includes abstract. / Includes bibliographical references. / The introduction of the Traditional Health Practitioners Act 22 of 2007 has made lawful the practice of traditional healing. As everyone has the right of access to health care services, the question of whether the state bears a duty to reasonably provide access to traditional healing as an element of its public health care service, is raised. In a democratic society, law must be responsive to the needs of the populace. Ethnographic fieldwork demonstrates that traditional healing is used not in opposition to, but as a complementary twin of, biomedicine. Considering this, it shall be argued that economically, socially and medically, the incorporation of traditional healing into the public health care service is neither appropriate nor required by the Constitution.

A Social and Labour Plan (‘SLP’) contains the comprehensive development programmes that a mining right holder must create and implement to benefit a mining affected community. An application for a mining right must be accompanied by an SLP. Additionally, SLPs must contain development programmes that address human resources and local economic development. This dissertation considers whether the SLP System perpetuates an enclave approach to development (‘enclave development’). Enclave development occurs where mining companies develop physical infrastructure, such as roads and electricity, to support their extraction of natural resources. The definition relied on in this dissertation goes a step further to include the implementation of social programs that only target specific areas surrounding mining operations. Assuming that the SLP system indeed perpetuates enclave development, the dissertation also inquires whether this can be remedied with reference to the African Mining Vision (‘AMV’). The hypothesis that the SLP System perpetuates enclave development was initially borne out of the Marikana Commission of Inquiry, which revealed issues with a British mining company’s SLP compliance. Relying on an enclave development approach is particularly problematic in South Africa, as it neglects the development of labour-sending areas and other poor communities that happen to be far from mining operations. By considering the AMV, it becomes evident that elements of the AMV’s proposed strategy of Resource-based Industrialisation are being pursued in South African mineral law and policies. The issue then arises whether the AMV can provide insight. Is it the case that South Africa has not yet seen the benefits of pursuing a Resource-based Industrialisation (‘RBI’) strategy because government is yet to maximise its implementation? Alternatively, are the critiques levelled against the AMV’s RBI strategy valid, hence its inability to speak to the South African SLP System? The critiques levelled against an RBI strategy are that: (a) it perpetuates the colonial model of resource extraction (thus explaining why South Africans fail to see the positive impact of this industrialisation strategy) and (b) it fails to address the negative social and environmental costs of pursuing a minerals based industrialisation strategy. Were one to support the argument that South Africa should work towards the full implementation of an RBI strategy, then the AMV’s proposal of localising the benefits of mining are appealing. The AMV proposes that a government establishes clear fiscal linkages with mining operations, that there be a clear revenue distribution system and the establishment of a Sovereign Wealth Fund. The development of fiscal linkages and a clear revenue distribution system would enable government to re-invest and distribute the revenue to local government, so that labour sending areas and poor communities benefit from mining. The portion of the revenue from mining would be invested into a Sovereign Wealth Fund and the revenue would ensure future generations also benefit from mining. The above approach, to localising the benefits of mining as opposed to relying on SLPs, returns primary responsibility for ensuring social development to the South African government. Governments are inherently far better capable than mining companies at ensuring far reaching social development and promoting socio-economic development. This dissertation concludes by asserting that at a theoretical level, although the AMV does provide insight that could potentially curtail the perpetuation of enclave development by the SLP System, whether these insights are worth implementing, and whether they can be implemented by the South African government, in the light of the compelling critiques levelled against the AMV’s RBI strategy needs further research.

The majority of refugee and migrant women who are travelling to Europe to seek asylum in the European Union are coming from war-torn countries in order to seek asylum from war or gender-based violence. This is due to the fact that women and children are often targets during war. They may be victims of forced marriages, forced abortions, genital mutilation, genderbased violence, sexual gender-based, rape and murder. Furthermore, these crimes are taking place on refugee routes leading into the European Union and in informal camps within the Union. These informal camps grow rapidly and the refugee populations always outgrow the availability of resources. As a result men and women cannot be housed separately thereby putting women at risk of gender-based violence, sexual harassment and rape. The dilemma therefore faced by refugee women is two-fold; the 1951 Refugee Convention does not mention gender as grounds upon which women can seek asylum meaning women who have suffered persecution and violence on the basis of their womanhood cannot qualify for refugee status and international protection. Secondly, the unsafe conditions of camps and some reception centres in Europe which exposes women to further forms of violence serves to compound their suffering and trauma and also amounts to further violations of their rights. Although EU Member States are aware of these matters, not much practical action has been taken to ensure safety and protection for refugee women.

Includes bibliographical references. / This dissertation's primary hypothesis is that the angst-spawning confusion plaguing this area of law stems from a feckless amalgamation of parallel, if not competing, notions of loss. Let me explain. When a promisee seeks judicial relief for breach, the court habitually applies two deeply-ingrained presumptions of fact whose status has been unconsciously elevated to rules of law.10 These judicial presumptions are that: 1. The promisee's concern is loss of performance and not loss of promise; and (After confining the matter to loss of performance) 2. The promisee's performance interest is essentially pecuniary value (profit) and not non-pecuniary value (utility). The Addis case illustrates the sad result of focusing on performance in a situation where the predominant loss caused by breach is promissory in character (Presumption 1). Farley, on the other hand, promotes the commercial agenda by perpetuating the notion that financial loss is the premier interest of contract as law (Presumption 2). This dissertation tests the above hypothesis by evaluating the prohibition on mental distress damages.

Once known as the Gold Coast due to minerals, Ghana has very little to show for that. The revenue generated from minerals in Ghana went into the Consolidated Fund associated with mismanagement and corruption. Auditor-General's annual reports support this assertion, and the Commission of Inquiry set up to investigate the source of the wealth of politicians, and public officials confirmed mismanagement of State resources. Ghana enacted the Petroleum Revenue Management Act (PRMA) upon discovering oil and separated the oil revenue from the Consolidated Fund. The PRMA guides the management of oil revenue to benefit all Ghanaians and cause growth. Despite the PRMA, Ghanaians are pessimistic about the management of the oil revenue due to mismanagement issues. It includes the Finance Minister's discretionary power, capping the Ghana Stabilisation Fund, transferring the Annual Budget Funding Amount into the Consolidated Fund, oil revenue spent in ways not provided for by the Act, institutional weakness, and lack of national development plans. The thesis seeks to determine how the enactment of the PRMA would help deal with mismanagement through a socio-political analysis of the Act. It does so by discussing the PRMA of Ghana critically, taking into account lessons from Botswana and Norway on a series of subquestions: a) the discretionary powers of decision-makers and its effect on the management of oil revenue, b) features of quality institutions that aid the management of resource revenue, c) how various types of funds and their utilisation assist the management of oil revenue d) the role of policy planning and project reporting dealing with non-compliance. The thesis deliberates these issues, focusing solely on the PRMA and its mechanisms to achieve transparency and accountability. It considered the reports issued by the Auditor-General and the Public Interest Accountability Committee (PIAC) on the utilisation of created funds and the lack of institutional autonomy. The thesis shows that although the PRMA has its strengths, flaws remain and these surface, especially in implementing the law. The design of the PRMA creates a discrepancy between its objectives and its operation requiring legislative reform. Looking at these weaknesses more closely, the thesis argues for a paradigm shift to precede recommended legislative reform to assuage the fears of Ghanaians by offering recommendations for improving the PRMA to optimise the oil revenue.