Memoria (licenciado en ciencias jurídicas y sociales) / Uno de los aspectos más complejos de salvar en materia de obligaciones es el relativo al cumplimiento forzado de las mismas, es decir, a que instituciones jurídicas recurrir para compeler al deudor de una obligación a que cumpla con lo debido. Quizás la manera más común de lograrlo será la constitución de una caución, sea esta real o personal, esto es que una cosa o patrimonio quedan afectos al cumplimiento de dicha obligación. Pero de la propia naturaleza de las cauciones resulta que estas deben ser constituidas por el deudor o por un tercero, es decir, debe concurrir la voluntad de quien se va a obligar por lo que en ocasiones resulta de muy difícil aplicación práctica. A diferencia de lo señalado precedentemente, el derecho legal de retención nace como una garantía real legal, sin considerar para su aplicación la voluntad del deudor de la obligación, lo que innegablemente la hace ser una garantía más eficaz. Además, la cosa que esta afecta al cumplimiento de la obligación, esto es, la cosa retenida, esta en poder del acreedor con anterioridad al hecho de constituirse en una garantía, por lo que no existe el peligro que la cosa no pueda ser habida o ya no exista al momento de hacerse efectiva tal garantía. Tampoco esta la dificultad de encontrar bienes con posterioridad con los cuales hacer efectivo el cumplimiento de la obligación pendiente.

M.Comm. (Education Management) / Legal services Is part of the concept of service In general that can be described us any activity or gain that one partytthe supplier) can give to anothertthe consumer). This activity or gain Is substantially unassailable. Intransferable to a third party and can not be stored. The classification of legal services according to the nature of the service conduct. the relationship between client and Jurist. the discretJon used during service delivery And the way the service is delivered. the nature of the service demand and the charactertsttcs of the service as such. means that one can draw an analogy with other dtsclpltnes In order to be more Innovative and competitive. QualIty Is a permanent function of any organization and permeates all aspects of work. Quallty Is ulttmately Judged by the client and that Is why the client must he the centre of any quality Improvement program. In general quality can be descrtbed as the correlation between the expectations of the cllent and the reahsatton of these expectations. Based on the studies done by Parasurarnan. Zetthaml and Berry(1985.1988) as adjusted. the quality of legal services Is conceptualised by way of the SERVQUAL model. describing five gaps as reasons for poor service quality. It Is submitted that In order to achieve quality In legal services. a program of total quality management must be Implemented. Total quality management means to manage a legal practice In an Integrated manner. In order to comply with the needs of the client. This Is done by way of basic management functions of planning. Implementing through organizing, leading and control.

Dr. A.C. Huysamen

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

What makes a good common law argument? Ronald Dworkin’s answer commands much respect within legal practice. To him, the correctness of a legal conclusion rests upon its capacity to fit within a narrative of normative progress that judges deliberately impose for the sake of (i) rendering overt the shared membership of discretely decided cases within a single determinate category (ii) depictive of moral attractiveness at its best. Yet, the inherent plausibility of Dworkin’s presentation of judicial reasoning has ironically resulted in the erosion of respect for the common law. If judicial narratives are imposed for aesthetic considerations, then legal conclusions must – per Kant – be mere idiosyncratic judicial desires that have the added quality of being objectively intelligible to other individuals who could nonetheless – owing to the absence of any criteria of norm correctness – justifiably disagree. If accurate, this characterization of legal decision-making would be anemic with modernity’s conviction that law is an entity inherently distinguishable from power because of the rationality – and therefore non-dogmatic nature – of its dictates. This thesis demonstrates – contra Dworkin – that judicial narratives go hand-in-hand with rationality. Judicial reasoning is thus of great importance to the aspirational goal of governance through law. As will be seen, only a constructed narrative renders possible the objective demonstrability (i) of the membership of discrete judicial decisions within the classificatory ambit of a specific norm and (ii) the legitimacy of that specific norm’s selection – from a set of countless other possibilities - via its evidential capacity to order those same discrete decisions tentatively asserted to be under its ambit into a coherent whole. Thus, because (i) the narrative is the methodological process by which a norm comes into agreement with its observed applications and (ii) truth is exactly this just-mentioned correspondence between intellect and reality, narrative construction is – quite properly – logic.

Magister Legum - LLM / No abstract available. / South Africa

This thesis examines the extent to which Kenya’s domestic legal framework vindicates indigenous peoples’ land rights. The question of who is an indigenous person in Kenya is, of course, controversial. In order to avoid becoming enmeshed in this debate, this thesis adopts the approach of the African Commission on Human and Peoples’ Rights, which is based on identifying the key concerns faced by marginalised communities who self-identify as indigenous peoples. Such an approach assumes that it really does not matter which label attaches to a group of people when vindicating their fundamental rights, provided that those rights are indeed available to be vindicated. In keeping with this assumption, the main argument of this thesis is that indigenous peoples’ core claim to land rights in Kenya can be accommodated within the mainstream legal framework, including the Constitution, legislation, and judicial decisions. In arguing thus, this thesis contradicts the common assumption, shared by numerous African states, that satisfying indigenous peoples’ claims requires a special legal framework. This assumption is all too often used to deny indigenous peoples’ claims on the basis that satisfying them requires preferential treatment. On the contrary, this thesis argues, it is possible to meet indigenous peoples’ claims by adopting general legal measures aimed at redressing past injustices and continuing socio-economic deprivation and inequality. This thesis further argues that measures aimed at redressing past injustices and alleviating current socio-economic inequality should take into account the particular circumstances of the groups targeted. In the case of indigenous peoples, who rely on their traditional lands for economic sustenance, and for whom land has a special cultural and spiritual significance, this means that the restitution of land should be central to any attempt to redress their particular concerns. As a practical matter, indigenous peoples’ land rights in Kenya may be vindicated in two main ways. The first is through a progressive interpretation of the existing legal framework by courts. Such interpretation hinges on giving effect to existing provisions in Kenya’s Constitution, particularly the right to life, non-discrimination and equality, protection from deprivation of property, and the Trust lands provisions. Progressive interpretation of the existing legal framework could also include recognition and application of the concept of indigenous title. The second way in which indigenous peoples’ land rights may be vindicated is by reforming the law to cater for all previously marginalised groups. Such reforms should include support for land restitution and redistribution, and equal application of African customary law. The first way in which indigenous peoples’ land rights may be vindicated is predicated on judicial activism. Using a court case by the Ogiek indigenous community, this thesis argues that, while the Kenyan legal framework has the potential to protect the land rights of indigenous peoples, its interpretation by the courts has been restrictive. It is therefore imperative that the law should be reformed to accommodate the rights of all marginalised groups. Such reforms need not be specifically designed to protect indigenous peoples, but rather all communities and individuals who are not adequately protected by the existing legal framework. A case study of the Maasai indigenous community is also undertaken to highlight the limitations of assimilationist legal measures that, far from protecting the groups they are meant to assist, instead entrench the status quo. The Maasai group ranches scheme, while ostensibly anchored in the legal framework, was designed to convert otherwise harmonious community land relations to a statutory regime that ignored community traditions and the Maasai’s preferred way of life. The failure of this scheme and the eventual subdivision of Maasai land provide strong evidence of the lack of appreciation and regard for Kenya’s indigenous peoples and the fundamental principles of justice, non-discrimination and equality prevailing at that time. The legal reform option for vindicating indigenous peoples’ rights is dependent upon political processes. By recourse to two comparable experiences, South Africa and Namibia, the thesis demonstrates that indigenous peoples’ land rights can be vindicated through a legal framework adopted to cater for all previously marginalized groups. Albeit fraught with constraints, South Africa’s indigenous peoples have utilised the legal reforms that were enacted to redress the historical injustices of the apartheid regime. Although Namibia has also adopted some legal reforms, especially relating to land redistribution, the apparent lack of political will to address the rights of her most marginalised communities hampers their effectiveness. The Namibian case shows that political processes can not be relied upon to right the wrongs suffered by marginalised peoples, especially when those groups lack political clout. However, as in South Africa, where the end of apartheid provided an ideal political environment to press for reforms that would cater for marginalised peoples’ needs, the political crisis following the December 2007 elections in Kenya provides an important window of opportunity. In the negotiations that followed this crisis, land reform has been identified as one of the key issues that demands comprehensive resolution for peace and prosperity to prevail. It is therefore imperative that genuine reforms that accord all Kenyan people an equitable share of her resources and address historical land injustices are adopted. Such reforms, it is argued, would enable indigenous people to vindicate their land rights, alongside other marginalised peoples. / Thesis (LLD)--University of Pretoria, 2009. / Centre for Human Rights / unrestricted

“No civilized society, regards children as accountable for their actions to the same extent as adults”.1 In the absence of a justice system applicable exclusively to children in conflict with the law in South Africa, children are subjected to the same rigours of the criminal law applicable to adults in South Africa. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.2 As a signatory to the United Nations Convention on the Rights of the Child, South Africa has a duty to ensure that the children in conflict with the law are treated in a manner that gives effect to the protectionary ideals espoused in the Convention. In July 2000, the South African Law Commission [Project 106] released the Child Justice Bill3, together with its Report on Juvenile Justice. Because the child justice system at present is not governed by legislation, uncertainty and inconsistency are constant dangers. We need legislation to ensure that all children in conflict with the law are dealt with consistently, fairly and appropriately. The question that needs to be answered in this treatise, is whether the Child Justice Act 75 of 2008, which comes into effect on 01 April 2010, is a legislative framework that incorporates due process rights together with the rights of children who is alleged to have committed an offence, to be protected and treated in a manner appropriate to their age.

This study examines the theoretical framework underlying Chilean legislation on sexual harassment in the workplace, notably to determine if the legislation has succeeded in uncovering and addressing the gender injustice and inequality involved in sexual harassment. This study further reviews whether the legislation adopted in 2005 is meeting its intended goal of protecting targets from harm by providing effective relief, penalizing perpetrators, and promoting adequate labour relations and climate. A combination of research methods were employed, notably a review of the legal scholarship, of Chile’s regulatory framework for sexual harassment, and of administrative and court system jurisprudence involving targets and perpetrators from the period prior to the enactment of the legislation in March 2005 through to October 2014. Quantitative sexual harassment data were drawn from a nationwide household survey conducted in 2011 by Proyecto Araucaria (“Research, Policy and Practice With Regard to Work-Related Mental Health Problems in Chile: A Gender Perspective”) The study also included interviews with key informants and focus groups with female workers. This study concludes that the debate between the equality versus protection of personal dignity paradigms is an abstract discussion not reflected in the practices of justice system actors, and that for the law to be effective, a sociopolitical and legal context facilitating recourse to it is required. Rather than considering only the formal resort to the relief provided in the law, it is crucial to examine the actual practices of individuals seeking to advance the protection of their rights.

The prime focus of this dissertation consists in exploring constitutional jurisprudence in the Supreme Court of Venezuela over the last five decades, making use of arguments drawn from Venezuelan history and the existing jurisprudential approaches to theories about the general character of law as integrated in numerous public law cases. This study offers a new approach, one that focuses on ensuring that fundamental constitutional principles are aligned with the concrete objectives (purposes) that the Constitution sets out to achieve. This account is developed through a theoretical framework comprising of: I. A historical overview from independence (1811) to democratization (1947 and beyond), emphasizing the fundamentals of the Constitutions of 1961 and 1999, to portray a vivid and accurate picture of the origins of Venezuela’s constitutional democracy; II. A survey, of constitutional cases that illustrates the evolution of the Venezuelan constitutional jurisprudence under the overt or subliminal use of certain default legal theories, namely, legal positivism in the era of the 1961 Constitution, legal realism and Ronald Dworkin’s adjudication theory in the era of the 1999 Constitution III. An insightful discussion of the main arguments of Ronald Dworkin’s principled theory and Justice Aharon Barak’s purposive theory, in an effort to build theorectical support, which links the various points of their respective theories in order to articulate one in the context of the Venezuelan jurisprudence; IV An original attempt to build a theoretical approach based on the Venezuelan constitutional system, history, culture, and identity to bring together the priorities of formalism, particularly the written principles of the Constitution and the priorities of functionalism and social welfare. This is to ensure that the Supreme Court decides accordingly with the constitutional principles as much as their underlying purposes to provide solutions to legal conundrums.