Magister Legum - LLM (Private Law)

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A comparative study of the South African and Islamic law of succession and matrimonial property with especial attention to the implications for the Muslim woman
(University of Western Cape, 1991) Moosa, Najma; de Villiers., F.A
As a Muslim south African trained in South African Roman-Dutch law, I have been exposed to experiences/situations which indicate a conflict between the principles of South African Roman-Dutch law and Islamic law of succession. This has prompted me to do some research into the history of Islamic law, the spreading of Islamic law over large parts of the world and the question of the recognition and application of Islamic law in South Africa. The central theme of this study is the Islamic law of succession in so far as it affects women. Chapter One of my dissertation contains a brief historical background which outlines on the one hand, the nomadic society, women and succession in pre-Islamic Arabia and on the other, their improved position upon the advent of Islam {seventh century) . It ends with the historical background of Muslims in South Africa. Chapter Two is devoted to the marriage property background against which both the South African and Islamic law of succession operate. Thereafter, in Chapter Three, the South African law and Islamic law (substantive rules} of succession are compared. These include both intestate and testamentary succession, the latter being limited on the Islamic side. Chapter Four, with the backgrounds sketched in Chapters Two and Three, demonstrates the visible internal conflicts between the Islamic and South African law of marriage and succession as encountered in South African practice. After evaluating statistics and alternative solutions in this regard, and having arrived at certain conclusions, I propose that recommendations about the possible recognition and application of Muslim Personal Law in South Africa which is at present enjoying the attention of the South African Law Commission in Project 59 should see fruition and be implemented as it can only assist the society in closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society. which we live since it is a vital aspect affecting our daily lives {and deaths!). Chapter Five covers the whole aspect of the Muslim testator or testatrix' s limited "freedom" of testation and reforms by certain forerunner countries in this regard which on closer inspection are riddled with controversies. Chapter Six explores the treatment received by a Muslim widow, daughter and mother in terms of their respective fixed "intestate" shares and its implications for modern twentieth century society.
The possible impact of the international criminal court on human rights in Africa
(UWC, 2001) Ngonji, E; de Vos, P
The cruelty and horrors of World War ll were historic in shaping the new world order. The international protection of human rights then gained eminence following the establishment of the Nuremberg and Tokyo international Military Tribunals (lMT) in 1945, to try Nazi and Japanese war leaders for crimes against peace, war crimes, and crimes against humanity committed during the war. Thereafter the United Nations (UN) General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, (Genocide Convention) on 9 December 1948, and later the Universal Declaration of Human Rights (UDHR) on 10 December 1948. Both instruments have been pivotal. While the latter has been the foundation upon which all subsequent human rights instruments have been developed, the former expounded the principle of international crimes and extraterritorial jurisdiction.
The African charter on the rights and welfare of the child
(University of the Western Cape, 2002) Gose, Michael; Sloth-Nielsen, Julia
So far little is known about the first comprehensive regional children's rights charter, the 1990 OA1J African Charter on the Rights and Welfare of the Child.' Th" Charter has been mentioned occasionally by documents and authors in different contexts. This happens mostly in the form of an addendum in the context of the 1989 UN Convention on the Rights of the Child, the universal children's rights instrument. This limited use of the Charter's provisions has created the impression that it is not, and cannot, be used as a document in its own. The confusion around the Charter is further complicated when it is quoted under a wrong name, ‘when dates and numbers get confused,3 or when it seems to be nearly impossible to get a copy of the original draft of the Charter. The situation gets worse if one tries to find reliable data on dates of ratification, numbers of States Parties and exact date of entry into force of the instrument.5 Only very scarce literature can be found on the subject. Very few authors6 have written (brief) articles on the Charter in legal journals or contributions for books specializing in the field of children's rights. These authors, however, mainly concentrate on selected points of the Charter and its historical background. In fact most of them wrote on the topic before the Charter came into force on 29 November 1999
United Nations peacekeeping and international humanitarian law
(UWC, 2002) Williams, E; Fernandez, L
The end of the Cold War created the expectation that the international community will be able to deal with any challenges to international peace and security more effectively. However, these expectations were dispelled, given the experiences in some war-tom countries. The uN peacekeeping forces are mainly faced with problems such as the shift from interstate to intrastate conflict and the related challenges of how, by whom, and when intervention in civil strife will be justifiable. one of the key questions is whether there will be the necessary political will and organizational effectiveness to diffuse the types of conflicts that threaten international peace.
Making non-state actors accountable for violations of economic rights: a case study of transnational corporations in the African context
(University of the Western Cape, 2002) Odongo, Godfrey Odhiambo; Van Reenen, Tobias
The development of a common standard for holding governments accountable for human rights violations represented by international human rights law (IHRL) has been one of the major achievements of international law. However, two conspicuously narrow foci marked and continue to mark this development. Firstly, IHRL has focused predominantly on civil and political rights to the exclusion of economic, social and cultural rights. Indeed, in this regard it has been observed that "of all domains were state and inter-governmental action have failed to achieve anything more than modest success, the development of effective measures for the prevention and remedying of violations of economic, social and cultural rights (ESCRs) must surely classify as one of the most glaring".
The Pan-African parliament : its promise for human rights and democracy in Africa
(University of the Western Cape, 2006) Hirpo, Sehen; Fredericks, Izak
Since the transition of the Organisation for African Unity (OAU) to the African Union (AU) there has been a notable shift in the way the organisation addresses human rights and democratisation. Particularly the OAU had been known for setting aside human rights concerns to the under resourced African Commission on Human and Peoples' Rights (African Commission) to deal with in Banjul, far away from Addis Ababa its major organs conduct their day to day activities.' However, the coming into force of the Constitutive Act of the AU and establishment of the Union had brought, at least in theory, human rights and democratic concerns to the centre. The Constitutive Act firmly and clearly provides as its objective the promotion of democratic principles and institutions, popular participation and good governance and promotion and protection of human rights in accordance with the African Charter on Human and Peoples' Rights (African Charter) and other relevant human rights instruments as provided for under articles 3(g) and 3(h) of the act. It further provides under article 4(m) respect for democratic principles, human right, rule of law and good governance as one of its principles. With the establishment of the AU and mainstreaming of human rights into the work of the AU, a myriad of institutions were created that deal with human rights. Coupled with this a very broad and rather general mandate was given to these various institutions. This resulted in lack of clearly defined roles and responsibilities of these institutions in relation to the promotion and protection of human rights as well as their contribution to democratisation. This in addition to posing a challenge to the aspiration of an integrated and effective approach to human rights leaves room for overlap, duplication of efforts and thus waste of already meagre resources. Unfortunately, four years since the inauguration of the AU in 2002 the roles and responsibilities of some of the major bodies tasked with promotion of human rights and democratic institutions are yet to be defined. One such institution is the Pan African Parliament (PAP). PAP owes it conception as far back as the Treaty Establishing the African Economic Community (AEC or Abuja Treaty) of 3 June 1991. The Sirte Declaration of 1999 called for the establishment of the AU and also provided for the shortening of implementation of the Abuja Treaty and the immediate establishment of institutions under the Africa Economic Community (AEC) one of which was PAP.2 PAP was finally established as an organ of the AU under article 5(c) and article 17 of the Constitutive Act. These provisions were further supplemented by a Protocol to the Treaty Establishing the African Economic Community relating to the Pan-African Parliament (Protocol establishing PAP), which was adopted in 2001 and came into force in 2003. One of its objectives, as set out in the Protocol, relates to the promotion of the principles of human rights and democracy in Africa (Art 3(2)). However since its establishment it is unclear as to how it has been carrying out this mandate and how it intends to do so in the future.
lnterrogating the competence of the African Court of Justice and Human Rights to review the African Union Assembly's decisions for compliance with human rights
(University of Western Cape, 2010) Orago, Nicholas Wasonga; Gallinetti, Jacqui
Globalisation and the transfer of powers from state constitutional systems to international organisations (lOs) have led to several deficiencies, especially with regard to checks and balances in global governance.l The need to inculcate the rule of law and constitutionalism in global governance has therefore gained currency in the 21't century.'This has been exemplified by calls for the reform of the United Nations (UN) and the extensive reforms in regional lOs, such as the European Union (EU), with emphasis on institutional balance and the tempering ofpolitical power with institutional controls.3The African continent has not been left behind in these developments. Africa has witnessed a proliferation of regional and sub-regional lOs with diverse mandates and competencies.a These bodies make decisions and adopt treaties with enormous implications for human rights and the fundamental freedoms of individuals.s Even though these lOs are well-intentioned, several questions arise about their checks and balances. First, how far are they bound to consider international human rights norms and standards in their work? Secondly, can their decisions besubjected to judicial review?6 Lastly, which body in the African human rights system has the mandate to judicially review such decisions? These are some of the questions with which this thesis will attempt to grapple, albeit with a limited focus.
"Co-management agreements with subsistence fishing communities as a means for promoting sustainable use and conservation of marine living resources in South Africa"
(University of the Western cape, 2011) Hara, Chimango; van Reenen, T.P.
The possibilities of institutional dialogue in South Africa through weak form judicial review
(University of the Western Cape, 2012) Kiewiets, John Henry; Le Roux, Wessel
The 1996 Constitution of the Republic of South Africa is the supreme law of the Republic and in enjoying this status it is prescribing the composition of the three different arms of government as well as each branch’s status within the new constitutional dispensation. Prior to this era of constitutional supremacy South Africa was subject to the principle of parliamentary sovereignty, an era where the courts could only challenge legislation on procedural grounds, but had no general power to declare legislation unconstitutional. The Constitution further provides for a separation of powers between these arms of government, and it has vested the judicial authority in the courts and conferred strong judicial review powers upon the Constitutional Court. The head of executive has recently argued that “the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”. The preceding quote is one of many statements and claims that forms part of a national debate on the nature and scope of the Constitutional Court’s powers in South Africa. The Constitutional Court has in recent years handed down judgments that were not favourable to the legislative and executive arms of the South African government. These judgments are evident in the existing and on-going tension between, the three arms of government.
Female genital mutilation as a human rights issue : examining the law against female genital mutilation in Tanzania
(University of the Western Cape, 2012) Yusuf, Camilla; Fessha, Yonatan
Counteracting the misuse and abuse of subsidies and SPS measures in the EU and USA: Solutions for South Africa
(University of the Western Cape, 2014) Muller, Crispin; Wandrag, R
It has been held that agricultural domestic support would not be such a contentious issue if its only effect was the benefit of local farmers, but this is not the case.1 It was found that several forms of domestic support have the effect of distorting the patterns of agricultural production and trade at an international level, leaving non-supported farmers elsewhere worse off.2 It was thus concluded that such support measures may indeed nullify the benefits which accrue from trade liberalisation and explains how the AoA3 regulates these measures in a way that reduces their trade distorting effects.4 It has been noted that the agricultural sector only accounted for a small percentage of the developed world's Gross Domestic Product {GDP}, yet the regulation of international agricultural trade was not an easy task.5 Smith explains that numerous attempts were made to implement some form of regulation, including a half-hearted effort in the General Agreement on Tariffs and Trade (GATT) and the subsequent AoA upon the creation of the WTO in 1995.6 According to Smith, the successful regulation of international agricultural trade remained elusive, despite Desta MG and McMahon JA explain that the WTO is not very concerned with countries that provide domestic support to their agricultural sectors, as this only matters to the extent that it hopes for liberalising trade in the sector.7 affects trade in that sector.8 It is further observed that the AoA balances out the freedom to provide domestic support with the need to reduce or eliminate the trade distortive effects thereof and note that the AoA has essentially made all forms of domestic support more transparent and easier to deal with.9 A party is therefore unlikely to be challenged, successfully, if domestic support is given in accordance with the provisions of the AoA.10 The aforementioned views only seem to address the merits of the AoA and the way in which it regulates the use of agricultural subsidies. It should however be noted that the literature fails to address the fact that the WTO has not enforced the provisions of the AoA very effectively against the EU and the USA, in light of the continued misuse of subsidies within both parties. In this regard it must be ascertained whether the WTO should impose stricter penalties as a means to deter its member states, especially the EU and USA, from using subsidies in an abusive way. In addition to this, it must be determined which types of penalties can and should be imposed.
The protection of geographical indications for agricultural products in Africa using trademarks and sui generis legislation
(University of the Western Cape, 2014) Sheldon, Lauren Natasha; Martin, Bernard
A geographical indication (GI) is a sign by which a product is identified as having its origin in a particular territory and as having certain qualities, characteristics and a reputation, which are associated with that origin. There is currently no uniform international mechanism of protecting GIs, however, the framework for the protection of GIs is provided by Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Article 23.1 provides a distinct advantage for the protection of wines and spirits as compared to the general protection of Article 22 for all other products. This thesis argues that a uniform system of protection for GIs should be established internationally, and that protection would be to the advantage of developing countries. The purpose of this study is to determine the best available method (i.e. trademark legislation or sui generis legislation) for protecting GIs for agricultural products of developing countries, through analysing the international legal framework governing the protection of GIs and the methods of national protection available as applied in Ethiopia, South Africa and India. The central argument advanced is that the use of trademarks should be a stepping stone, sui generis legislation is the ideal. Sui generis (separate) legislation should be drafted to fulfil the obligations of TRIPS and to ensure the extended protection, through national legislation, of all goods within other Member States. It is highly unlikely that the TRIPS Member States will agree to the extended protection of the Article 23. Therefore, the most suitable method to achieve such protection would be for Member States to extend their national protection through sui generis legislation.
Non-formalised cohabitation : does the Swedish model of statutory regulation provide a solution for South Africa?
(University of the Western Cape, 2015) Damons, Nikita Theresa; Sloth-Nielsen, Julia
South Africa has come a long way from the rigid family structures which existed in the past. This is demonstrated by the recognition afforded to couples in same-sex relationships as well as those in customary marriages. Proposals have also been set forth regarding law reform to protect the rights and interests of those involved in domestic partnerships. The Domestic Partnership Bill was promulgated in 2008 but to date has not been passed into law. The ensuing consequence is that cohabitation relationships are therefore self-regulated. This relationship has no legal status as a union in South Africa. The court have, however, recognised that a universal partnership could be established if certain criteria are met. Furthermore, heterosexual couples are now also recognised as a "dependant" in actions against the Road Accident Fund for loss of support as a result of death of the breadwinner. Unlike South Africa, cohabitation in Sweden is regulated by a dedicated law called the Cohabitees Act 2003. The Act provides comprehensive protection than that afforded to cohabitants in South Africa. It offers a clear definition of cohabitation and criteria in order to qualify as a cohabitee. The Act, further, regulates the proprietary consequences of entering into such a relationship and the effects of termination. Cohabitation has status as a legal union in Sweden. My research will deal with non-formalised cohabitation and a comparison shall be made between the current systems in South Africa and Sweden. My work will suggest that the statutory model of regulation in Sweden may provide a solution for South Africa. In South Africa, cohabiting couples are not afforded the same rights as married couples. In contrast, married couples are afforded rights automatically as a result of the institution. Unmarried partners have no automatic duty of support, to acquire an interest each other's separate property and a cohabitee may not inherit intestate from the estate in the event of death of one of the partners. In Sweden, intimate relationships are treated similarly to married relationships, with the law applying the principle of "neutrality" with regard to its family laws. Several cases have emerged recently in South Africa which will provide a clearer understanding of the current state of the law. The reason for undertaking this study is to illustrate the changing mores of society and the necessity of the law to keep up with these values. As South Africa has not yet passed its domestic partnership law it may be useful to compare it to Sweden in order provide South Africa with a possibly better approach. Sweden has passed laws on cohabitation and these have been in place for years. Thus we might still learn from them prior to our law being passed. Legislative and judicial activity have soared recently and it may be beneficial to look at another jurisdiction more carefully. These observations will be undertaken more comprehensively in the body of the thesis.
The Bill of Rights as the cornerstone of environmental justice in South Africa : an analysis of section 24
(University of the Western Cape, 2015) Dheka, Lawrence; Scholtz, Werner
An assessment of the legal framework on the protection of girls from child marriages in Malawi
(University of the Western Cape, 2015) Mawodza, Obdiah; Mwambene, Lea
The aim of this study is to assess Malawi's legal framework on the protection of girls against child marriages linked to HCPs. The research is guided by the following objectives: 1. To highlight the international and regional legal framework in addressing traditional HCPs that can lead to child marriages; 2. To discuss different traditional practices that lead to child marriages in Malawi; 3. To analyse Malawi's legal framework and its compliance with international and regional standards for the protection of girls against child marriages; 4. To make suggestions for the available legal framework, if necessary, on how best to address the problem of child marriages in Malawi.
Exploring the possibilities of relaxing the privity principle of contract to accommodate the interests of third parties in South Africa
(University of the Western Cape, 2018) Mbonderi, Bright; Sibanda, Nkanyiso
This thesis investigates the possibility of relaxing the privity principle of contract to accommodate the interests of third parties in South Africa. It explores concepts relating to the doctrine of privity as well as the two legs that constitute this common law doctrine. It will draw lessons from the English legal system because English law of contract managed to reform the doctrine of privity in order to accommodate the interests of third parties to a contract. While this thesis is not a comparative study of England and South Africa, it will draw substantially from lessons that can be taken from England with regard to abrogating the privity principle of contract. England has been chosen as the point of reference because there has not yet been any other African country that has reformed this privity principle of the common law of contract in order to accommodate the interests of third parties.
The legal protection of sound, scent and colour marks in South Africa: Lessons from the European Union and the United States of America
(University of the Western Cape, 2018) Kallis, Garth Ernest; Mupangavanhu, Yeukai
A trade mark is defined as a sign that is capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trade marks, copyright, patents and designs are some of the forms of intellectual property. Trade marks can be divided into traditional trade marks and non-traditional trade marks. Traditional trade marks are capable of being represented graphically, for example logos, service marks or company names. Non-traditional trade marks are generally not capable of being represented graphically. Examples of these marks are inter alia, scent, taste, touch and sound marks. Technology is changing the way business is being conducted. The registration of nontraditional trade marks has grown exponentially as businesses seek to use innovative ways to protect their brands. Non-conventional trade marks may be visible signs, examples of which include colours, shapes, moving images, holograms and positions or non-visible signs such as sounds, scents, tastes, textures. Visible signs may easily be registered since they satisfy the requirement of graphical representation. Non-visible marks do not generally meet this requirement which makes their registration more complicated. An example of a registered visible non-traditional trade marks is the four finger shape of Kit Kat chocolates.
An analysis of the legal challenges experienced by offenders with hearing and/or speech impairment in the South Africa criminal justice system
(University of the Western Cape, 2019) Petse, Isiphile; Albertus, Chesne
This study identifies and analyses legal impediments faced by certain offenders who have impaired speech and hearing in the criminal justice system. It focuses on some of the challenges which arise during the pre-trial stage, trial and during incarceration. In particular the thesis considers the barriers which offenders face in making or seeking to make voluntary statements, challenges due to an inability to understand court proceedings and the plight of such offenders during incarceration. Some of the major barriers which ought to be addressed in terms of the law are identified and highlighted while endeavouring to make some recommendations which may improve the position of offenders with hearing and /or speech impairment in the South African criminal justice system.
Assessing the independence and credibility of the national prosecuting authority
(University of the Western Cape, 2019) Williams, Juan-Pierre; Mezmur, Benyam Dawit
Members of the National Prosecuting Authority (NPA) are required to be dedicated to the rule of law. Yet, recent and past decision-making has caused instability in the functioning of the NPA. The decision to prosecute or not to prosecute involves the exercise of discretion. The NPAs use of this discretion has been called into question on numerous occasions which has resulted in the erosion of its independence and credibility. There are constitutional and legislative provisions in place to guide prosecutors in the decision-making process which allows for a measure of accountability. However, the link between prosecutorial independence and accountability for decision-making is not clear when looking at recent and past decisions by the National Directors of Public Prosecutions. Therefore, an evaluation of the instability in the office of the National Director of Public Prosecutions during the period of 1998-2018 will be discussed. The research discusses the unwarranted intrusion on prosecutorial decision-making. Furthermore, external interfering has resulted in the loss of public confidence in the functioning of the NPA. The administrative duties of prosecutors are guided by constitutional and legislative procedures. Hence, the research will identify whether these procedures are efficient for the effective administration of the NPA. Key to the already mentioned will be providing recommendations on how to create stability in an institution that has been surrounded by instability for the past 20 years.
False advertising and consumer protection in South Africa
(University of the Western Cape, 2020) Kerchhoff, Dominique; Mupangavanhu, Yeukai
Deceptive advertising, which is also known as false advertising, refers to a manufacturer making use of confusing, misleading, or blatantly untrue statements to promote a particular product or service. The phrase ‘false, misleading or deceptive’ was apparently adopted from North American legislation. It is important to begin by defining these key terms that are frequently used in this thesis. A ‘false’ representation means giving wrongful or incorrect information to someone. A ‘misleading’ representation can be defined as one that leads someone astray, or causes someone to have an incorrect impression or belief. A ‘deceptive’ representation is similar to a misleading representation because it is aimed at deceiving the consumer which ultimately leads to the consumer making an error in judgement. These terms are very similar to each other but there are subtle differences between them. Representations are often misleading or deceptive by virtue of it being false. A representation can, however, also be true yet still be misleading or deceptive.

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