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The effectiveness of the South African Truth and Reconciliation Commission in the contect of the five pillars of transitional justiceMotlhoki, Stephina Modiegi 09 1900 (has links)
This study evaluated the effectiveness of the South African Truth and Reconciliation
Commission (SATRC), using the theoretical and conceptual framework of the five
pillars of transitional justice. Chitsike (2012) identified the five Pillars of Transitional
Justice that the study uses. For that reason, Truth-Seeking and Truth-Telling, Trials
and Tribunals, Reparations, Institutional Reform and Memorialisation are the Five
Pillars of Transitional Justice that this study elected to use as the conceptual and
theoretical framework. The Five Pillars of Transitional Justice that were delineated by
Boraine (2005) are referred to for analytical purposes in the study. Methodologically,
the study assumes a qualitative posture. Literature study through content analysis that
uses description and exploration is deployed to make interpretation of the used
literature.
This study notes that each one of the pillars of transitional justice has its
recommendations and limitations, and the pillars are much more enriched and
enriching when applied in complementarity to each other rather than in isolation. The
SATRC process also had its achievements and limitations, and its popularity was
based on political impressions rather than concrete transitional justice achievements
on the ground, in the view of the present study. Furthermore, it appears to the present
study that more time is needed for much more reliable evaluations of the effectiveness
of the Truth and Reconciliation Commission (TRC) to be made, some of its successes
and limitations will take many years and or even decades to manifest because at the
end of the day, TRCs are historical process and not events. / Political Sciences / M.A. (Politics)
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The harmonisation of good faith and ubuntu in the South African common law of contractDu Plessis, Hanri Magdalena 11 1900 (has links)
The legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof. / Private Law / LL. D.
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