Faculty of Law

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https://hdl.handle.net/10566/25

The Faculty of Law's principal research focus areas include human rights, local government law, criminal justice and prisons, and labour law.

Electronic theses and dissertations are available in the Electronic Theses and Dissertations Repository.

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The 1996 Constitution and the Tax Administration Act 28 of 2011 : balancing efficient and effective tax administration with taxpayers' rights
(University of the Western Cape, 2016) Moosa, Fareed; De Ville, Jacques R; Croome, Beric J
Taxation is fundamental for development in South Africa (SA), a developing country with an emerging economy in which taxation is essential to capacitate the government so that it can fulfil its mandate under the Constitution of the Republic of South Africa, 1996 (Constitution). This mandate includes bringing about socio-economic transformation, part of transformative constitutionalism, through progressively realising socio-economic rights. This dissertation examines the way in which tax administration may take place efficiently and effectively with due respect for taxpayers' rights. A clear link is shown between taxation, human rights and the South African government's responsibilities to attain its transformation targets. To facilitate this process, the Constitution creates a legal framework for the imposition of tax and for the equitable distribution of tax revenue among the three spheres of government. For historical, political and other reasons, South Africans generally, as happens elsewhere in the world, lack a strong culture of voluntary tax compliance. Wilful non-payment of tax is antithetical to the values of democracy, ubuntu and the rule of law. Tax non-compliance minimises revenue collected from taxation. This, in turn, hinders the attainment of transformation in all its facets. A pressing need exists for laws that, on the one hand, promote tax morality and, on the other, strengthen the South African Revenue Service (SARS) so that it can effectively administer SA's national tax system (or grid). To this end, the Tax Administration Act 28 of 2011 (TAA) is pivotal. It regulates tax administration, a part of public administration. Under the Constitution, SARS is obliged to execute its functions in a manner respectful of taxpayers' rights and that upholds the Constitution’s values and democratic principles. Consequently, the TAA must strike a fair balance between, on the one hand, protecting taxpayers' rights and, on the other, arming SARS with adequate powers with which it can effectively combat the mischief of tax non-compliance. This dissertation shows that, when viewed through the prism of s 36 of the Bill of Rights (BOR), the powers conferred on SARS by ss 45(1), (2), 63(1) and (4) of the TAA to conduct warrantless inspections and searches, as the case may be, limit taxpayers' rights to, inter alia, privacy. It concludes that, whilst ss 63(1) and (4) ought to pass muster, ss 45(1) and (2) are susceptible to a declaration of invalidity under s 172(1) of the Constitution.
2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)
(Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit
South Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the ﬁ rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to ﬁ nalise the text of a ﬁ nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.
The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective
(Pretoria University Law Press (PULP), 2013) Orago, Nicholas Wasonga
The prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.
A case for a legal and regulatory framework for cryptocurrency transactions in Kenya
(University of the Western Cape, 2024) Muthoni, Esther Nduta
Background: Lately, there has been a surge in the popularity of cryptocurrencies, also referred to as digital currencies. The emergence of virtual currencies like Bitcoin and Ethereum has disrupted the market and led to widespread speculation that cryptocurrencies may eventually replace traditional paper currency. The genesis of cryptocurrencies can be traced back to the global financial crisis of 2008. The inaugural cryptocurrency, Bitcoin, was introduced in 2009 by an anonymous entity known as Satoshi Nakamoto. These digital currencies are exchanged using blockchain technology. Notably, cryptocurrencies like Bitcoin function independently of intermediaries such as banks. The underlying blockchain technology operates with a high degree of anonymity, in contrast to banks, which require the disclosure of personal information, thus safeguarding the privacy of users. Consequently, individuals transacting in cryptocurrencies can do so without revealing their identities. Cryptocurrency is a virtual currency that uses cryptography as a security feature to prevent forging.6 One of the main features of cryptocurrencies is that they are not issued by central banks and are fully decentralized. Cryptocurrency is a digital representation of value that is digitally traded and also functions as a medium of exchange, a store of value, and a unit of account. However, some scholars argue that as a unit of account cryptocurrency is unreliable due to high volatility.
A child's right to identity in the context of embryo donation: Lessons from Australia and New Zealand, part 2
(North-West Unversity, 2024) Bouah, Nicole; Jacobs, Carmel
In part 1 of this article the current level of protection of the right to identity both at the national and international levels were considered in the case of embryo donation. It was concluded that at a national level the national health act, its accompanying regulations and the children's act fail to protect this right. The constitutional provisions on children's rights are also unhelpful in providing the requisite level of protection. At an international level it was further found that neither the CRC nor the ACRWC explicitly uphold the child's right to identity in the case of embryo donation. In an attempt to address this defect, this article compares the legal protection provided for the right to identity of children born through embryo donation in Australia and New Zealand. A number of lessons can be drawn from this comparative analysis. At a national level the article submits that the birth certificate should indicate the child's true origins and in addition to a register which holds the particulars of the child's donor parents, a separate donor sibling register is also suggested. Legislative amendments are also suggested to parliament.
A child's right to identity in the context of embryo donation: part 1
(North-West Unversity, 2024) Bouah, Nicole; Jacobs, Carmel
This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity
A comparative legal approach to mining rehabilitation funding schemes in South Africa and Western Australia
(University of the Western Cape, 2024) Fredua, Agyemang ; Ashukem, Jean-Claude Nkwanyuo
Despite the environmental and social challenges posed by historically abandoned mine sites to host communities, little effort has been made by the mining industry and governments to rehabilitate the environment. Mine rehabilitation projects are typically costly. In many instances, mining companies do not have a specific stance on funding sources for rehabilitation once the economically productive phase of the mine has concluded. Moreover, there is a lack of clearly assigned responsibilities and an absence of criteria and standards of rehabilitation for abandoned mines. South Africa is not exempt from the plague of abandoned mines because, for many years, environmental liabilities relating to mine closure have not been managed appropriately. As such, most mines have been simply abandoned. South Africa is believed to have around 6,000 deserted mines. Legislation has been enacted to address this issue. These include the National Environmental Management Act (NEMA) of 1998, the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, and the Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining, or Production Operations, including National Environmental Management Act: Regulations: Financial provision for prospecting, exploration, mining or production operations (GNR1147). These legislative measures are designed to promote the polluter pays principle (PPP), which requires mines to bear the financial burden of environmental damage they cause.
A Critical analysis of section 129 of the companies act 71 of 2008
(University of the Western Cape, 2017) Barends, Richard Heinz; Wandrag, Riekie
A company forms an important part of a community in which it conducts business. It, therefore, has a direct impact on the economic and thus the social well-being of that community through its employees, suppliers and distributors. Consequently, the failure of a company has a large effect on society than merely its employees and creditors. In some instances this may lead to companies being liquidated. Granting an order of liquidation, results in the demise of the corporate entity and the attendant loss of jobs. This is further protracted by an unsatisfactory pro rata share in the residue for unsecured creditors, and the abandonment of claims when such are not proved. Having a corporate rescue procedure in place can prevent or even limit the amount of job losses, or provide an alternative measure as opposed to liquidation of companies. Corporate rescue affords a company a second chance, after having once failed, to restructure its financial affairs and once again become a successful concern.
A critical analysis of the laws which affect the size of the remand detention population in South Africa
(University of the Western Cape, 2024) Davids, Gidean Zion; Albertus, Chesne
Background: The term ‘remand detainee’ means a person detained in a remand detention facility awaiting the finalisation of their trial. Such person has not commenced with serving a sentence or is not already serving a prior sentence. Remand detainees have a unique status, in that they are presumed innocent (if they have not been convicted yet) and are protected by certain rights that do not apply to sentenced offenders. These rights will be discussed later in this chapter. A bail application of an accused person should be seriously considered by the courts and in principle such decision should not easily lead to remand detention where bail is not a just option. Put plainly, when the courts cannot grant bail to the accused, detention should not be the automatic means to ensure the accused’s attendance at his/her trial. There are after all various ways in which the attendance of the accused can be secured at his/her trial.5
A critical examination of the legal ambiguities surrounding labour tenants in terms of the Land Reform (Labour Tenants) Act
(University of the Western Cape, 2024) Gabriel, Bronwyn Amor; Fick, Sarah
The history of South Africa includes the recognition of labour tenants with the numerous enactment of legislation.9 The Land Reform (Labour Tenant) Act (LTA) was enacted to redress the past injustices suffered by labour tenants.10 However since the enactment it only had one amendment, which did not address the pertinent issue namely the definition of a labour tenant. Loosely defined a labour tenant is a person who has land, grazing and tenure rights on the land of another, subject to working on such land.11 The courts have explored various approached to interpret this definition and have caused inconsistency.12 If a claimant falls short of the definition he or she is disqualified from all benefits deriving from the LTA.13 Therefore placing this issue in the hands of the courts is an injustice to labour tenants. This mini dissertation will explore whether the LTA is affording enough protection to labour tenants with its implementation and interpretation of its provisions. The LTA will further be compared to previous legislation that governed labour tenants on farms and the Land Tenure Security Bill14 proposed by the Department of Rural Development and Land Reform (DRDLR). Studies of the landmark case law will be discussed to determine which interpretation of the definition of a labourtenant affords more protection.
A critical examination of the legal protection of climate refugees: lessons from recent case law in Australia and New Zealand
(University of the Western Cape, 2024) Davids, Ashlyn; van der Berg, Angela
As the climate crisis worsens, a growing number of people are being forced to flee their homes due to climate-related events.1 Such people are typically referred to as climate refugees.2 According to Institute for Economics and Peace (IEP), it is predicted that at least 1,2 billion people across the globe could be displaced by climate-related events by 2050.3 Human activity is the main driver of climate change.4McAdam states that an analysis of climate change-induced displacement can be traced back to earlier deliberations on environmental displacement, which were particularly prominent during the 1990s.5 Climate change6 has diverse negative impacts on human systems, including on water security and food production and cities, settlements and infrastructure.7 In general, refugees are protected by international law instruments. International human rights law and refugee law are closely intertwined as the system for protecting refugees at the international level is human rights-based.8 This places the dignity and rights of individuals and vulnerable groups at the centre of protection.9 In the case of Ioane Teitiota v New Zealand10 (hereafter referred to as Teitiota case), it was verified under human rights law that the principle of non-refoulement requires no one to be forcibly returned to a country, where climate change impacts expose them to life-threatening risks or cruel, inhuman, or degrading treatment.11
A critical legal analysis of elephant welfare and management considerations in South Africa’s environmental law and policy framework.
(University of the Western Cape, 2024) Theron, Ethel Meryl
Animal welfare refers to the humane treatment, care, and husbandry of animals. To take animal welfare into consideration is to protect and cater to the physical and mental needs of the animal. For many years, the topic of animal welfare has evaded the international and national legal realms. It was viewed as too controversial, and to a large extent, has still not been dealt with directly, globally, and nationally, with a few exceptions. Recently, there have been four cases in South Africa where specific reference has been made to the importance of animal welfare and acknowledgment of the existence of sentience in wild animals. This has been a progressive realisation in the South African judiciary. South African government needs to urgently promulgate comprehensive and holistic legislation that emphasizes the importance of animal welfare to ensure that reserves, parks, and zoos can properly manage wildlife. The 2008 Norms and Standards regulating the Management of Elephants are somewhat progressive with respect to welfare considerations. However, the owners and managers of elephants as well as conservation authorities have been facing challenges regarding the enforcement and implementation of these Norms and Standards. The Department of Forestry, Fisheries and Environmental Affairs (DFFE) proposed that amendments be made to address the challenges.
A legal analysis of the prevalence of domestic violence against women by their intimate partners in underprivileged areas in South Africa
(University of the Western Cape, 2024) Maseko, Vuyelwa; Van Marle, Karin
The aim of this research paper is to investigate the prevalence of domestic violence in underprivileged areas, where spatial location and patriarchy are at the center of the problem. Underprivilege for the purposes of the study refers to areas where poverty, unemployment and poor service delivery are rife. These factors often go hand in hand with enduring inequality between men and women. The public private divide has been criticized by feminist theorists over many years. One of the results of this divide is that domestic violence has been regarded as a private matter and a matter to be dealt with in the private sphere. The private sphere is often a space where women experience patriarchy and domination with little recourse to the law and this is worse for women who find themselves in areas of impoverishment and inequality. In terms of Section 2 of the Domestic Violence Amended Act 14 of 2021, domestic violence is defined as physical abuse; sexual abuse; emotional, verbal and or psychological abuse; economic abuse; intimidation; harassment; sexual harassment; related person abuse; stalking; spiritual abuse; damage to property; elder abuse; coercive behaviour; controlling behaviour; expose a child to domestic violence; entry into the complainant’s – permanent or temporary residence, workplace or place of study without his or her consent or any other controlling or abuse behaviour of intimidation , threatening, abusive degrading, offensive or humiliating nature towards a complainant.Statistics shows that over 50% of women will experience gender-based violence in their life time either at work place or at home.The aim of this paper is to consider the intersection between spatial location,specifically underprivileged areas where there is inequality and impoverishment, and patriarchy as contributing to women’s plight.
A legal framework for combating trade-based money laundering in the African continental free trade area
(University of the Western Cape, 2024) Iyandaa, Debayo Etukudo; Hamman, Abraham
African Union member states have commenced the process of establishing the African Continental Free Trade Area (AfCFTA), boosting intra-African trade through liberalisation and facilitation of trade widely seen as a crucial driver for economic growth, industrialisation and sustainable development. Despite the abundant opportunities the free trade area proposes to generate, as trade increases, it would engender the threat of trade-based money laundering, undermining the potential economic benefits.A number of commendable initiatives and instruments to deal with the commercial,criminal and corrupt elements of illicit financial flows (IFFs) have been embarked on; however,they are addressed in multiple and disconnected forums, which is a challenge to Africa. Currently,there is no single comprehensive global framework or architecture for tackling IFFs that utilises trade misinvoicing (TMI) and trade-based money laundering (TBML), the most frequently utilised mechanism facilitating measurable IFFs.This study proposes a harmonised legal regime under the auspices of the African Union and Regional Economic Communities as a pathway towards greater integration as envisaged.
Abortion and the right to life: A case study of South Africa and Germany
(University of the Western Cape, 2016) Zimmer, Martina; Mezmur, Benyam Dawit; Machaya, Musavengana
The issue of abortion and the protection of the right to life have been discussed by many academics, yet remains an unresolved topic in many countries. The mere fact that abortion is the deliberate termination of a human pregnancy raises the question, whether or not such an act violates the right to life. Abortion has been legalised in South Africa and Germany. This study explores the area of abortion vis a viz the obligation of South Africa and German under the international and regional human rights instruments to protect the right to life. Notably, the right to life is protected under a plethora of international and regional human rights instruments. At international level, the right to life is protected under Article 3 of the Universal declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. At regional level of the right to life is protected by Article 2 of the European Convention on Human Rights and Article 4 of the African Charter on Human and Peoples� Rights. To give a broad understanding of the meaning, nature and content of the right to life, this mini-thesis shall critically analyse the words used under the above Articles which protect the right to life. Then the paper will endeavour on its main objective which is to determine whether or not the legalisation of Abortion in South Africa and Germany violates the right to life?
Abusing the accused? Unpacking the use of entrapment in Uganda’s fight against corruption
(University of the Western Cape, 2018) Nanima, Robert Doya
In Uganda, an accused person enjoys a right to a fair trial. It is a requirement that the circumstances surrounding the collection and admission of evidence do not violate this right. This article argues that the use of entrapment in cases of corruption may lead to an abuse of the fair trial rights of an accused. The lack of a legislative framework regulating entrapment, the institutional entrenchment of entrapment in the criminal justice system and the inadequate guidance from judgments substantiate this argument. This article recommends amendments to the Criminal Procedure Code Act with a view to preventing abuse of the accused by agents of the criminal justice system.
Access to essential medicines in East Africa: A review of East Africa community and its member states approach to WTO-TRIPS public health flexibilities
(University of the Western Cape, 2018) Majok, Daniel Bol; Lenaghan, Patricia
Magister Legum - LLM (Mercantile and Labour Law)
Access to HIV treatment for refugees : case study of South Africa and Uganda
(University of the Western Cape, 2015) Njiba, Jessica Tshiosha; Durojaye, E
Access to Justice in Kenya in the Context of Sustainable Development Goals (SDG) 16.3 on the Rule of Law: Lessons for the upcoming 2020 Voluntary National Review Report
(CEDRED Publications, 2020-08) Nanima, Robert Doya; Durojaye, Ebenezer
Kenya was among the various countries that presented a Voluntary National Review Report in 2017. In the context of the Sustainable Development Goal 16.3, a close reading of the 2017 Report shows some strong and weak points. Kenya is preparing its second Voluntary National Review Report at the next High-Level Political Forum in 2020. This contribution argues that Kenya can take lessons from its 2017 Report to comprehensively engage issues that speak to Access to Justice under SDG 16.3. First, the contribution contextualizes Sustainable Development Goal 16.3 in Kenya’s context. Secondly, it evaluates and juxtaposes the requirements for the Voluntary National Review Report under the 2020 and the 2017 Guidelines. Thirdly, it evaluates the extent to which the 2017 Voluntary National Review Report ascribed to its guidelines and where the emphasis for the 2020 Report should be. The fifth step is a hint on the way forward; followed by a conclusion. The authors adopt a desktop approach that evaluates available literature, legislation, case law and similar sources. The findings show that until May 2020, the SDG 16.3 did not deal with access to civil justice. Literature has identified the need to engage both formal and informal courts to deal with various societal issues like entrenched inequalities, discrimination and the independence of the judiciary. This study finds that a point of departure from Kenya’s 2017 VNR Report requires that data should be desegregated according to the requirements of SDG 16.3, with a more nuanced approach that links the challenges to access to justice.
Access to reproductive health and rights for indigenous women in Zimbabwe: A case of the San community in Tsholotsho and Plumtree
(University of the Western Cape, 2023) Nkomo, Sindiso Nozitha; Durojaye, Ebenezer
Access to healthcare, including reproductive health, is an essential human right that necessitates the attainment of human development, non-discrimination between genders, and promotes women’s rights. Reproductive health and rights enable women to make independent decisions and choices relating to their bodies and make it possible to keep women healthy, safe, and dignified. Despite this importance, indigenous women often struggle to have access to satisfactory reproductive health services and have poorer outcomes compared to the general populace. Indigenous women from Zimbabwe are not exempt from this predicament. It is against this background that this study aims to interrogate the extent to which San indigenous women in Zimbabwe enjoy access to reproductive health and rights. The elements of reproductive health and rights which are the main focus of this study are: “prevention and treatment of sexually transmitted infections (STIs), including HIV and AIDS and cervical cancer; maternal health; and voluntary informed and affordable family planning services.” Studies have been conducted on access to other rights by San people, such as their right to education and to decide their cultural and ethnical integrity.

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