Magister Legum - LLM (Private Law)
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Item The African charter on the rights and welfare of the child(University of the Western Cape, 2002) Gose, Michael; Sloth-Nielsen, JuliaSo 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 1999Item 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, ChesneThis 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.Item An analysis of the ‘likelihood of confusion’ test in the South African trademark law(University of the Western Cape, 2022) Vuke, Kawake Sipelo; Mupangavanhu, YeukaiThis section contains an overview of trademarks and the objective is to provide background information to the discussion. Trademark law is a creature of statute except for the law of passing-off which comes from common law.1 Trademarks are governed by the Trade Marks Act 194 of 1993.2 Accordingly, it is imperative to look at this Act to have clarity on the definition of a mark and a trademark.Item Assessing the independence and credibility of the national prosecuting authority(University of the Western Cape, 2019) Williams, Juan-Pierre; Mezmur, Benyam DawitMembers 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.Item 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, LeaThe 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.Item Balancing emancipatory legal pluralism and cultural relativism(University of the Western Cape, 2022) Gazi, Bonga; Diala, Anthony C.The concept of legal pluralism receives tremendous attention in sub-Saharan Africa. Notably, this attention arises because of the domineering tendency displayed by transplanted European legal orders now known as state laws. By demanding compliance with bills of rights, which are modelled on universalistic human rights that developed in Europe, state laws are steadily eroding the legitimacy of indigenous African laws. As such, a notable aspect of normative interaction in Africa is a struggle between indigenous laws and state laws. These struggles occur alongside socioeconomic transplants, which have steadily affected the normative behaviour of many Africans. Consequently, an assessment of the status of indigenous African laws is necessary.Item 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, WernerItem "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.Item 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.AAs 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.Item 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, RIt 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.Item A critical analysis of bilateral (dual) marriages in Zambia(University of the Western Cape, 2023) Siyubo, Kashewe M; Mwambene, LeaIn the Zambian context, marriage is one concept that has more than one definition This is because marriage can be legally contracted under two laws namely African customary law and statutory law. The former is potentially polygamous4 while the latter is monogamous. In terms of validity, a marriage that fulfills the dictates of either law becomes a valid marriage. In practice, however, those that contract their marriage under statute also fulfill the dictates of African customary law. The resultant effect is that such marriages are contracted under both laws thereby creating a ‘dual-legal’ marriage. In this research a dual marriage will conveniently be termed ‘bilateral marriage’ for ease of reference.Item Examining the link between economic development and the enforcement of socio-economic rights in Africa: A case study of South Africa and Nigeria(University of Western Cape, 2021) Mashego, Katlego Arnold; Ndlovu, Precious NThis year marks 57 years since Organisation of African Unity (OAU) was formed on 25 May 1963 in Addis Ababa, Ethiopia. This year also marks 18 years since the African Union (AU) was formed on 9 July 2002 in Durban, South Africa. This year further marks 39 years since the adoption of the African Charter on Human and Peoples’ Rights (African Charter) was adopted on 27 June 1981 in Nairobi, Kenya. This was recorded as historic step towards the protection of human rights in Africa.Item Examining the South African competition law enforcement institutional framework: Lessons for Sierra Leone(University of Western Cape, 2021) Juwah, Alfred Paul; Ndlovu, Precious NTrade liberalisation, free-market system, privatisation and deregulation have become major steps taken by individual countries to accelerate economic growth. This trend has made competition law and its enforcement institutional framework pivotal, especially so with the advent of the African Continental Free Trade Agreement (AfCFTA). A liberalised trade and a free market system without effective machinery to checkmate the activities of market participants would invariably give rise to anti-competitive practices such as monopolies, abuse of dominant position, cartels, and vertical restraints. These anti-competitive practices have an adverse effect on trade. Sierra Leone has made commitment to liberalise its market space, deregulating and developing the private sector to accelerate economic growth. This goal would be challenging, without an extant competition law statute and an independent enforcement institutional framework to address anti-competitive practices in the country.Item 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, NkanyisoThis 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.Item False advertising and consumer protection in South Africa(University of the Western Cape, 2020) Kerchhoff, Dominique; Mupangavanhu, YeukaiDeceptive 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.Item 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, YonatanItem Feminist approach to Ukuzila custom under the new South African constitutional dispensation(University of the Western Cape, 2021) Ngubane, Sibusiso Mmeli; Mwambene, LeaThis study sought to investigate how the ukuzila practice violates women’s constitutional rights, and how can ukuzila custom be aligned with the constitutional values of gender equality. A qualitative research approach was employed to collect in-depth data through a desktop method. Various legal materials such as legislation, case laws, legal journals, internet sources and books have been utilised and referenced to answer the postulated research questions. Using the liberal feminism theory, the findings of the study reveal that ukuzila violates inter alia the right to equality, right to human dignity, freedom of movement, freedom of religion, belief, and opinion.Item Judicial balancing of cultural relativism and universalism of human rights in post-Apartheid South Africa(University of the Western Cape, 2022) Ngamnteni, Sinegugu; Diala, AnthonyGlobalisation did not only bring about major political, social and economic changes; it also strengthened the global reach of universalism of human rights. The concept of universal human rights is presently reconstructing the world order and reshaping national constitutions worldwide. Universalism is based on the ideology that human rights should be recognised universally and applied to all cultures. In opposition, cultural relativism posits that the notion of universal human rights is a Western idea that should not apply to all cultures of the world, as every culture has its own moral standards that are perceived as acceptable or unacceptable in the specific contexts of the people identifying it. The concept of universal human rights has been embodied in constitutions of almost all countries. In particular, the Constitution of the Republic of South Africa has been influenced by a universalist approach to human rights.Item A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa(University of the Western Cape, 2020) Ndayi, Zoliswa Beauty; Mwambene, LeaThe right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.Item A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa.(University of the Western Cape, 2020) Ndayi, Zoliswa B.; Mwambene, LeaThe right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.4 Furthermore, the state is required to ensure that ‘scientific and technical knowledge’ is made accessible, thus incorporating modern teaching and learning methods.5 In addition, the state is called to ensure that the quality of their education is acceptable and of a similar standard in all of their public schools.6 Moreover, the Convention on the Rights of the Child (hereafter referred to as the ‘CRC) and the African Charter on the Rights and Welfare of the Child (hereafter referred to as the ‘ACRWC’) require the state to take measures that will encourage learners to attend school regularly and thus reduce the dropout rates.7 These instruments lay down normative standards, giving guidance on the content of the right to basic education, i.e. defining what availability, accessibility, acceptability, and the adaptability (4As) means within the broader context of the right to basic education. The right to a basic education, in theory is immediately realisable; however in practice, it can be argued that it is being treated like other socio-economic rights, subjected to the principle of progressive realisation.8 This right, unlike other socio-economic rights in South Africa, is sui generis, it has no internal qualifiers, meaning that it can only be limited in terms of a law of general application that is reasonable and justifiable in an open and democratic society founded on human dignity, freedom and equality.9As a party to most of the above instruments, the post-apartheid government of South Africa through its Constitution10, has entrenched the right to basic education under section 29(1)(a). Through this constitutional recognition, numerous legislation and policy documents have been enacted, which directly deal with the implementation of this right.11 Accordingly, the following selected legal instruments have been essential tools used to assist the relevant stakeholders with defining and implementing the right to a basic education , not just at the national level but also provincially.12 These instruments are the South African Schools Act,13 National Education Policy Act14 and the Employment of Educators Act,15 which are the main statutes on basic education. In addition, the Eastern Cape Schools Education Act,16 Promotion of Equality and Prevention of Unfair Discrimination Act,17 Children's Act,18 Criminal Law (Sexual Offences and Related Matters) Amendment Act,19 Criminal Procedure Act and the Refugees Act,20 which shall be discussed in detail in chapter 4 of the study When assessing the availability, accessibility, and the acceptability of basic education resources in the Eastern Cape (hereafter referred to as ‘the EC’), the province appears to be lagging when compared to some of the other provinces. For instance, the National Education Infrastructure Management System Report (hereafter referred to as ‘NEIMSR’) stated that out of the 5393 schools audited from the EC, 1945 of these schools had pits and 37 had no sanitation facilities21. In addition, 92.99% of the 5393 schools in the province do not have libraries and 4.21 % of the schools recorded have adequately resourced libraries.22 This is to be contrasted to 63.24% schools that have libraries in Gauteng.23 In addition, the illiteracy rate in the province is estimated at 10, 4% when compared to other provinces, which is against the background that the province has experienced a decline in learner enrolment over the last few years.