Magister Legum - LLM (Private Law)

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A surrogate mother’s post-birth contact with the family formed through surrogacy: a missed opportunity for South Africa or opening pandora’s box?
(University of the Western Cape, 2023) Ebrahim, Fatima; van Niekerk, Carmel
This dissertation assesses the suitability of South Africa’s current framework on post-birth contact in surrogacy law and explores whether it adequately protects the interests of all parties to the surrogacy agreement. This assessment reviewed the current legislative and practical framework, and then compared it to the Verona Principles’ best practices and the position in the United Kingdom, United States and Canada where post-birth contact practices occur. The assessment found that the current framework has several deficiencies. Its law as contained in section 297(1)(d) of the Children’s Act erroneously creates a default position that excludes post-birth contact between the surrogate and her family and the child born through surrogacy, unless provision is made for its inclusion in the surrogacy agreement. Its practices were found to give precedence to the interests of commissioning parents by largely excluding post-birth contact for previously unknown surrogates and limiting the autonomy of previously known surrogates to determine the terms of such contact. This position persists as inadequate discussions appear to occur between the parties on their post-birth contact expectations due to beliefs that this contact is not permitted or it is discouraged for unknown surrogates. High courts also do not appear to probe post-birth contact provisions in surrogacy agreements or the lack thereof. This assessment also raised concerns about the perception of bias and conflict of interests due to one attorney representing and one psychologist assessing all the parties to the surrogacy agreement.
A critical analysis of bilateral (dual) marriages in Zambia
(University of the Western Cape, 2023) Siyubo, Kashewe M; Mwambene, Lea
In 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.
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.
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 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
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.
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.
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.
Workplace bullying: An evaluation of the legal framework on workplace bullying in South Africa: Need for reform
(University of the Western Cape, 2022) Safodien, Fayroes; Booley, Ashraf
Workplace bullying is often associated with negative acts such as harassment, discrimination and victimisation,1 which is the reason that legal certainty is required, for protection against such conduct. Consequently, the legislation under scrutiny includes the Occupational Health and Safety Act 85 of 1993 (‘OHSA’), Labour Relations Act 66 of 1995 (‘LRA’), Employment Equity Act 55 of 1998 (‘EEA’), Protection from Harassment Act 17 of 2011 (‘PHA’), Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘PEPUDA’) and other statutes. Research shows that employees experience workplace bullying in South Africa (‘SA’).
Judicial balancing of cultural relativism and universalism of human rights in post-Apartheid South Africa
(University of the Western Cape, 2022) Ngamnteni, Sinegugu; Diala, Anthony
Globalisation 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.
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.
An analysis of the ‘likelihood of confusion’ test in the South African trademark law
(University of the Western Cape, 2022) Vuke, Kawake Sipelo; Mupangavanhu, Yeukai
This 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.
Examining the South African competition law enforcement institutional framework: Lessons for Sierra Leone
(University of Western Cape, 2021) Juwah, Alfred Paul; Ndlovu, Precious N
Trade 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.
Feminist approach to Ukuzila custom under the new South African constitutional dispensation
(University of the Western Cape, 2021) Ngubane, Sibusiso Mmeli; Mwambene, Lea
This 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.
Prospects of formal regional stock exchange in the East African community: legal and regulatory considerations
(2021) Mziray, Sia Aidan; Lenaghan, Patricia
The East African Community (EAC) is among the eight regional economic communities recognised under the platform of the African Union.1 What has transformed to become the EAC was initially founded in 1967 with the name East African Co-operation, having Kenya, the United Republic of Tanzania and Uganda as members states.2 The Treaty establishing the East African Cooperation was subsequently dissolved in 1977 owing to various reasons, including the perceived dominance of Kenya, misunderstandings on resource sharing and ideological differences of the three-member states.3 The Treaty for the Establishment of the East African Community of 1999 (henceforth called the EAC Treaty) signed by Kenya, Uganda, and the United Republic of Tanzania revived the EAC as we have it today.4 These founding member states signed the EAC Treaty on 30 November 1999, and it entered into force on 7 July 2000.5 In July 2007, Rwanda and Burundi joined the EAC.6 The Republic of South Sudan became the last country to join the EAC in April 2016,7 thereby bringing the total number of member states to the EAC Treaty to six.
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 N
This 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.
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.
An overview of the regulation and management of cryptocurrency in South African inter vivos and testamentary trusts.
(University of the Western Cape, 2021) Sylvester, Brandon; Du Toit, François
Our lives, work, and behaviour have been changed both positively and negatively by the digital presence that has grown tremendously over the last three decades, and with this exponential growth, we cannot predict where we will be, digitally-speaking, in the years to come. As it stands in South Africa and the majority of the world today, we find that the law is yet to catch up to the technological explosion, in particular to the concept of digital assets. Digital material that is produced and purchased form a big part of our daily lives as we continue to consume media online, use social media platforms, and invest in cryptocurrency. The question of whether South African law makes sufficient provision for the incorporation of digital assets and, in particular, cryptocurrency in inter vivos or testamentary trust is yet to be fully established.
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, Lea
The 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.
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, Lea
The 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.

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