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 legal practitioners pursuing “Hopeless Cases” in the South African legal system.
(University of the Western Cape, 2024) Famate, Tinyiko Modjadji Comfort
This research paper investigates the conduct of legal practitioners who appear in matters (act on or defend) in which there are no reasonable prospects of success (hopeless cases). The study focuses on the potential legal and ethical implications for legal practitioners who choose to pursue such cases. Employing a qualitative research approach, this study will conduct an extensive literature review, which includes a critical analysis of the Constitution of the Republic of South Africa, 1996, relevant books, statutory provisions, journal articles, reports from South African legal commissions, case law, chapters, and the foreign legal framework. The findings of this study serve as an informative resource, providing insights that enable legal practitioners to make informed choices during the case selection process. This investigation also contributes to the ongoing debate regarding the Labour Court’s condemnation of legal practitioners for bringing hopeless cases before it.
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 'national security veto' in terms of section 18A of the Competition Act 89 of 1998
(University of the Western Cape, 2024) Tavuyanago, Simbarashe
In February 2019, the President of the Republic of South Africa signed into law a seminal piece of legislation in the form of the Competition Amendment Act 18 of 2018. Amongst the various amendments contained in the amendment, an important one is that which inserted section 18A into the principal Act, the Competition Act 89 of 1998. In terms of the section, the President must constitute a committee to consider whether a merger involving a foreign acquiring firm may have an adverse effect on the ‘national security interests’ of the Republic. Where the committee determines that a merger involving a foreign acquiring firm poses a threat to one or more of the Republic’s national security interests, the committee may prohibit the implementation of such a merger. Further, where the competition authorities approve of a merger involving a foreign acquiring firm which poses a threat to the ‘national security interests’ of the Republic, the committee may revoke such approval. The committee, in this regard, has ‘veto’ powers when it comes to mergers including foreign acquiring firms. This thesis examines the rationale, justification and cogency of the ‘national security veto’ in terms of section 18A of the Competition Act. The research further investigates the appropriateness of addressing national security concerns through competition policy. While cognizance is taken of the fact that where a gap exists in policy, legislative amendments may be used as a stopgap mechanism, the question is whether the Competition Act is the most appropriate instrument to address national security concerns. The thesis further examines the treatment of national security interests in two foreign jurisdictions, Australia and the United States of America, in a bid to establish whether the provision is in line with international best practice and whether any lessons may be drawn therefrom. The thesis highlights challenges that the insertion of section 18A may precipitate, ranging from constitutional to logistical challenges in terms of the enforcement of section 18A. In that vein, the thesis finds among others, the following key challenges: firstly, that competition law is not the most suitable channel for the regulation of national security; secondly, that there is a lack of legal certainty regarding the definition of national security; thirdly, there are shortcomings relating to the procedure of considering national security, including the delineation of roles for the national security committee and the competition authorities; lastly, there is no review mechanism regarding a decision of the national security committee, thus violating the principle of the rule of law. The thesis, therefore, inter alia, formulates a proposal for reforming merger regulation where national security interests are a concern. It proffers that the regulation of national security must be done through separate and holistic legislation specifically aimed at addressing national security generally, including national security concerns that may fall outside the domain of merger regulation. As an alternative to the above, the thesis proposes that since mergers involving foreign acquiring firms are considered ‘investments’ under the Protection of Investment Act 22 of 2015, national security regulation in such mergers would be better suited under South Africa’s investment policy and law. To cater for an eventuality where the above proposals are not adopted and to ensure implementation of the section, the thesis further proposes an amendment of section 18A, providing a reworked reading of the section.
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 Critique of the International Criminal Court’s Approach to Reparations for African Victims Of International Crimes.
(University of the Western Cape, 2024) Dlamini, Bongani Maxwell
When the Rome Statute of the International Criminal Court was adopted on 17 July 1998 and came to effect on 2 July 2002, it established a platform for bringing justice to victims of international crimes. The Rome Statute brought a distinct framework which provided protection and participation of victims including the award of reparations to remedy the harm they have suffered. Article 75(1) and (2) spell out the mandate entrusted to the International Criminal Court (ICC or the Court) to advance principles regarding the granting of reparations by the Court. The article further gives power to the Court to award orders of reparations against convicted persons. The mandate of the Court to award reparations is an important aspect especially for African victims against whom the international crimes of genocide; war crimes; crimes against humanity and the crime of aggression as provided for in the Rome Statute; have been perpetrated. However, the implementation of the mandate of reparations for victims seems to be encountering a number of challenges that include the identification of the victims in different circumstances and other substantive factors. This research seeks to establish how well the task of reparations has been operationalised in practice by the Court by examining the five cases that the Court has so far awarded reparations in.
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)

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