Law Multidisciplinary

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The protection of the rights of children affected by HIV/AIDS in South Africa and Botswana : a critical analysis of the legal and policy responses.
(2013) Sarumi, Rofiah Ololade.; Strode, Ann Elaine.; Carnelley, Marita.
Abstract not available.
The combatant status of non-State actors in international armed conflicts, in light of the notion of direct participation in hostilities : an analysis of relief workers, journalists, voluntary human shields, private-military and security contractors, and under-aged child soldiers recruited into non-State organized armed groups.
(2012) Bosch, Shannon Joy.; Carnelley, Marita.; Cowling, Michael G.
The increased outsourcing of many traditionally military functions, together with the fact that international armed conflicts are increasingly being fought in predominantly civilian locations, is contesting the international humanitarian law (IHL) presumption that civilians are necessarily non-participatory spectators in the theatre of war. The legal lacunae which surrounds non-State actors like: private military and security contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs), relief workers and journalists, is complicating the legal assessment of their primary IHL status, obscuring crucial determinations around whether their actions amount to direct participation in hostilities, and confounding certainty around the legal regime applicable to them upon capture. Through critical analysis of customary and treaty based IHL, this project explores the primary IHL status of each of these types of non-State actors. Thereafter it seeks, through practical application of the ICRC’s Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific conclusions on the range of activities that might compromise their civilian immunity against direct targeting. In the final analysis the study concludes that engaging in combat functions, operating weapons systems, participating in direct support functions, conducting training for predetermined hostile acts, sabotaging military capacity, guarding captured military personnel, gathering intelligence for use in marking targets, divulging tactical information or acting as a lookout will amount to direct participation in hostilities. Through similar investigation, the study concludes that mere interference, defensive guarding or shielding of civilian or other dual-use sites, and the defense of military installations against criminal elements, fails to rise to the threshold required to compromise a civilian non-State actor’s immunity against attack. While dispelling the misconception that civilian status itself can be legally forfeited, the project explores the practical legal consequences of civilian direct participation in hostilities: including legitimate direct targeting of these non- State actors for so long as their participation or membership of the combative group persist, and their criminal prosecution upon capture.
An analysis of challenging the commissioner's discretionary powers invoked in terms of Section 74A and 74B of the Income Tax Act 58 of 1962, in light of the Constitution of the Republic of South Africa 108 of 1996.
(2013) Erasmus, Daniel Nicolaas.; Williams, Robert Charles.
This thesis deals with the relevant law up to 30 September 2012. This thesis analyses the inter-relationship in particular between ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution of the Republic of South Africa (‘the Constitution’) (collectively referred to as ‘constitutional obligations’); s 4(2) of the South African Revenue Service Act 34 of 1997 (‘SARS Act’); the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’); and a decision by the Commissioner for the South African Revenue Service (‘the Commissioner’ or ‘SARS’, as the case may be) to exercise his powers under ss 74A and 74B of the Income Tax Act 58 of 1962 (‘ss 74A and 74B of the Income Tax Act’) by requiring taxpayers to produce or provide information, documents and things at the commencement of an inquiry or audit of taxpayers, and concludes that such a decision constitutes ‘administrative action’ as defined in s 1 of PAJA, or, alternatively is subject to the constitutional principle of legality. This conclusion is reached on the basis that such a decision, of an administration nature made, or leading to a further decision proposed to be made, or required to be made, to issue revised assessments will: · have been taken by an organ of State exercising a public power in terms of legislation; · involve the exercise of a discretionary power, where SARS determines whether and in what circumstances it will require a taxpayer to provide information, documents and things; · adversely affect taxpayers’ rights, and has a direct, external legal effect. The fact that the power in question is preliminary and investigative, and that its exercise does not in itself determine whether any tax, penalties and interest is payable, does not detract from the impending conclusion usually made by the same SARS officials that tax, penalties and interest will most likely become payable following from the preliminary investigation. The decision imposes on taxpayers an obligation to do something (to produce or provide information, documents and things) which, but for the exercise of that power, taxpayers would not in law be obliged to do, due to taxpayers’ privacy rights in terms of s 14 of the Constitution, and entitling them to expect SARS to abide by its constitutional obligations. A failure by taxpayers to comply exposes them to criminal prosecution under s 75(1)(b) of the Income Tax Act. Furthermore, the power exercised by SARS is not subject to the normal objection and appeal processes in the Income Tax Act, limiting the opportunity for taxpayers to challenge such a decision in terms of the Income Tax Act. Lastly, there is no relevant exclusion in the definition of ‘administrative action’ that removes this type of decision from that definition in PAJA.
A critical analysis of the implementation of the Maintenance Act 99 of 1998 : difficulties experienced by the unrepresented public in the Maintenance Court as a result of the poor implementation of the Act.
(2014) Coutts, Tamazin L.; Carnelley, Marita.
Maintenance law in South Africa is based on the existence of the common law concept of the duty of support between dependant parties. As a result of this duty of support, parents are obliged to support their children whilst they are unable to support themselves. This is a right of all children. There has been a constant evolution of the scope of the common law concept of duty of support through both case law, and legislation, culminating in the Maintenance Act 99 of 1998. However, due to structural and procedural issues tied to the implementation of the Act, children's rights often go unprotected, particularly in cases where members of the public enter and engage in the maintenance system unrepresented. This dissertation aims to identify and address many of the problems encountered by maintenance court users on a daily basis. Specific reference is made to the experiences of the unrepresented public in the Eastern Cape Province, where research was conducted. The study begins with a historical overview of origins of maintenance law. This is followed by an overview of Act 23 of 1963 and the innovations which it brought about. Next, Act 99 of 1998 is reviewed, accompanied by an explanation of innovations and amendments, and criticisms. The research results are discussed on a comparative basis with already documented studies on the maintenance system as identified through an analysis of available literature on the subject. Further criticisms are identified through quantitative research, undertaken in the form of a survey conducted amongst Maintenance court users within 7 magistrate’s courts in the Eastern Cape Province. This dissertation continues to document suggested solutions to the problems highlighted, including corrections to the 1998 Act itself, as well as solutions and recommendations related to its implementation. The conclusion of this study is that one of the primary means of overcoming the short falls in the maintenance system is education of court users in their rights and responsibilities, as well as procedures to follow, with regards to the Maintenance Court.
Liability of directors for reckless and fraudulent trading : the continuance of s424 (1) of the Companies Act 61 of 1973 together with the coming into force of s22 and s77 (3) (b) of the Companies Act 71 of 2008.
(2013) Phungula, Simphiwe Peaceful.; Williams, Robert Charles.
This research paper focuses on the s424 (1) of the Companies Act 61 of 1973. It is deals specifically with the wording of the section and how courts have interpreted it. It critically explains the most cherished principles of corporate law as to the interpretation of the section. Notwithstanding the existence of s424 (1), in 2011 the new Companies Act 71 of 2008 came into force. The new Companies Act also deals with the liability of directors for reckless and fraudulent trading. However, the new Companies Act deals with such liability differently from s424 (1) of the companies Act of 1973. The difference between the s424 (1) of the Companies Act of 1973 and the new Companies Act of 2008 can be seen on the application of both Acts. Section 424 (1) of the Companies Act of 1973 applies by the application of creditors at the winding up of the company whereas the new Companies Act of 2008 introduces s22 which applies even when the company is still continuing to do business. Furthermore, s424 (1) of the Companies Act provides remedies to the creditors for the debts incurred by the company whereas the new Companies Act introduces s77 (3) provides for remedies to the company for any loss, damages, or costs sustained by the company as a direct or indirect consequence of the directors’ conduct. Accordingly, despite the coming to force of the Companies Act 71 of 2008, s424 (1) of the Companies Act 61 of 1973 still exist in the circumstances of winding up the company. The application of both s424 (1) and s22 and s77 (3) has encouraged me to deal with the topic of liability of directors for reckless and fraudulent trading. This research paper tries to look at both Acts and how they approach the liability of directors in the aforesaid manner. The research paper tries to look at what courts have said since the coming into force of the Companies Act of 2008 since 2011. I wish to deeply pass my gratitude to supervisor Professor RC Williams of University of KwaZulu Natal who has helped and guided me in completing this research paper. I also wish to thank Professor B Grant and D Subramanien who have also helped me in formulating the structure of this research paper.
The employee's right to privacy versus the employer's right to monitor electronic transmissions from the workplace.
(2013) Chigumba, Patience.; Subramanien, Darren Cavell.
Privacy is important because it represents human dignity or the preservation of the ‘inner sanctum’. Due to technological developments the operational concerns of employers are continuously threatened or challenged by the employee’s right to privacy in the workplace. It is common knowledge that employees all over the world are exposed to numerous privacy invasive measures, including drug testing, psychological testing, polygraph testing, genetic testing, psychological testing, electronic monitoring and background checks. The issue at the heart of this dissertation is to determine to what extent privacy is protected in the South African workplace given advancements in technology and the implications (if any) for the right to privacy. A secondary aim of the dissertation is to attempt to provide a pragmatic balance between the privacy concerns of employees and the operational needs of employers in this technological age. This dissertation mainly focuses on the invasion of privacy in the workplace through the monitoring of focus areas of email, internet and telephone correspondences of the employee. To provide an answer to the research issue discussed above, this dissertation addresses four ancillary or interrelated issues. First, the broad historical development of the legal protection of privacy is traced, examined and a workable definition of privacy is identified with reference to academic debate and comparative legislative and judicial developments. Secondly legislation on the regulation of monitoring in the workplace is critically examined and discussed. Thirdly, those reasons and practices, which threaten privacy in the employment sphere, are identified and briefly discussed. More specifically, the dissertation considers how these reasons and practices challenge privacy, the rationale for their existence and, if applicable, how these reasons and practices may be accommodated while simultaneously accommodating both privacy and the legitimate concerns of employers. Fourthly, a detailed evaluation of the case law and judicial developments of South Africa on the right to privacy in the workplace are examined so as to seek a balance if any between the employee’s right to privacy and the employer’s right to monitor. To successfully tackle the above issues the dissertation uses the conventional legal methodology associated with relative legal research, which includes a literature review of applicable law and legal framework and a review of relevant case law.
Fixed-term contracts and the reasonable expectation of renewal and the effect of the Labour Relations Amendment Bill 2012.
(2014) Mahomed, Aadila.; Whitear-Nel, Nicola Jane.
This dissertation aims to explore the nature of fixed-term contracts and their effect. Employees who are employed on fixed-term contracts usually develop a reasonable expectation of renewal. A reasonable expectation may arise where an employee, who has been employed on a fixed-term contract, or successive fixed-term contracts, then develops a reasonable expectation that s/he will be offered permanent employment. The common law position was that employees who were employed on fixed-term contracts could not have this expectation, as their contract expressly provided for automatic termination on a specific date, or on the completion of a specific project. However, the Labour Relations Amendment Bill which is now in force serves to change this position. It provides some relief to employees who are exploited in the sense that they are essentially kept in limbo- employed temporarily and without certainty or job security. In this dissertation, fixed-term contracts in general and relevant provisions of the Bill will be compared to international developments and standards.
Corruption and the law : an evaluation of the legislative framework for combating public procurement corruption in South Africa.
Sugudhav-Sewpersadh, Prenisha.; Devenish, George Edwin.
No abstract available.
Penal discourse and imprisonment in South Africa : an examination of the evolving discourse surrounding imprisonment in South Africa, from the colonial period to the post-apartheid era, and it's effects on the human rights of prisoners.
Peté, Stephen Allister.; Zaal, Frederick Noel.
The focus of this thesis is on the evolving public discourse surrounding imprisonment in South Africa from the colonial period to the post-apartheid era, and its effects on the human rights of prisoners. Although the punishment of imprisonment has dominated the penal landscape for around 200 years it is clear that, in terms of its stated aims of reducing crime and rehabilitating criminals, it has proven to be an abject failure. The influential philosopher Michel Foucault maintains that the failure of this form of punishment was apparent from the very beginning of its rise to prominence in the Nineteenth Century. It turned out, however, that the very failure of the prison system – its propensity to "create" a class of criminals separated from the rest of society – was useful in the context of developing capitalist industrial societies. As a result, this form of punishment did not wither away, but continued in existence despite repeated crises and widespread public acknowledgement of its failure to reform criminals or to reduce crime. The above may be true of the manner in which imprisonment, as a form of punishment, evolved in France and in the developed world in general, but the question at the heart of this thesis is whether or not Foucault's theory holds true in the South African context. In other words, by carefully tracing the public discourse surrounding imprisonment in South Africa from the colonial to the post-apartheid periods, a primary aim of this thesis is to establish whether the evolution of imprisonment in South Africa follows the same pattern as that outlined by Foucault – a pattern of apparent "failure" from the very start, with regular and repeated, but ultimately futile, attempts at "reform". By showing that this is, in fact, the case – that the South African prison system has been lurching from crisis to crisis since its inception, with the same "solutions" being suggested from one decade to the next – this thesis suggests that the "problem" with imprisonment in this country lies at a structural and ideological level. If this thesis is correct, "reforming" the South African penal system will not be possible without completely rethinking imprisonment as a form of punishment at an ideological level. Precisely what such a rethinking might entail, this thesis leaves open for future scholarship. An important secondary aim of this thesis is to trace the evolution of penal ideology in the South African context. In other words, it sets out to trace the development of the perceptions and ideas which have underpinned the punishment of imprisonment in this country over its history. Starting in the colonial period and focusing in particular on colonial Natal, these ideas may be described as the articulation of the penal theories and assumptions of an industrialised metropolitan political economy – Great Britain – and those of a rural colonial political economy – the Colony of Natal. A unique ideology of racially defined punishment emerges strongly towards the end of the colonial period. Moving to the apartheid period, through a careful analysis of various themes which arise in the public discourse surrounding imprisonment, the thesis traces the penal ideology operating within a society rigidly segregated according to race. Finally, once again through a careful analysis of the public discourse surrounding imprisonment, the ideas and perceptions which underpin punishment within post-apartheid South Africa, are examined. The thesis thus provides a unique overview of the manner in which penal ideology has developed within a uniquely African setting, by tracing the evolution of a set of ideas reflected in public discourse. A tertiary aim of this thesis is to trace the manner in which the role played by imprisonment within the social, political and economic structure of the country as a whole, has changed over time – together with social, political and economic developments. The use of imprisonment as a mechanism of social control during various periods – particularly the colonial and apartheid periods – as well as the constant problems which arose within the South African penal system because of this, is particularly important. Finally, as part of a detailed analysis of the public discourse surrounding imprisonment in South Africa during specific periods in the colonial, apartheid and post-apartheid eras, this thesis examines selected themes and sub-themes which emerged at various times. Taken together, these themes and sub-themes provide a series of "snapshots" of what it was like to be imprisoned in South Africa at particular times in the country's history. A constant focus throughout the thesis is the manner in which the human rights of South African prisoners have been abused from the time that prisons rose to prominence in this country almost two centuries ago – to the present day. This thesis strives not to lose sight of the human suffering which has characterised imprisonment in South Africa from colonial times to the present.
Particular legal issues in international trade : a critique of the multilateral agreement on agriculture from the perspective of South Africa and Brics.
(2014) Moolla, Aslam A. S.; Stevens, Clydenia Edwina.
Abstract not available.
Foresight of the causal sequence as a requirement of dolus eventualis in consequence crimes :
(2015) Mkhize, Amanda Pearl.; Walker, Shelley Ann.
Dolus eventualis is an important aspect of South African criminal which has undergone certain modifications. One of these modifications was formulated in 1989 in the case of S v Goosen. Before the decision of Goosen, the principle of law was that as long as the accused foresaw the occurrence of the unlawful consequence, the manner in which it occurred was irrelevant. Dolus eventualis was said to be present if death was foreseen as a possibility but occurred in a way which was not exactly the same as the way which was anticipated by the accused. The accused did not have to foresee the precise or general way in which death would be brought about; it was enough that death was desired or foreseen. The Goosen decision formulated the requirement of ‘foresight of the causal sequence’. This requirement is now essential in order to prove the existence of dolus eventualis in consequence crimes. According to the requirement of foresight of the causal sequence, the intention element is not satisfied if the consequence occurs in a way that differs markedly from the way in which the accused foresaw the causal sequence. This requirement differs from the principle followed by the courts in pre-Goosen decisions where foresight of the causal sequence was not necessary and was sometimes considered as irrelevant. All that was required was that the accused foresee the possibility of death occurring as a result of his or her unlawful conduct. The purpose of this dissertation is to critically analyse the requirement of foresight of the causal sequence by analysing the case of S v Goosen, exploring how commentators received the Goosen rule and investigating how the rule has been applied in practice. Although, the rule has attracted conflicting academic criticism, none postulate that the decision of Goosen made bad law. One of the problems of the Goosen rule is that it is not consistently applied in practice. Although this is undesirable, the rule has not been detrimental to the law and certainly does have a valuable place as it limits liability in common purpose cases, where an unlawful consequence occurs in a manner that the immediate party did not subjectively foresee.
The judicial defense for affirmative action measures : a critique of the rationality standard of judicial review.
(2015) Mbutho, Sibusiso Blessing.; Cohen, Tamara Jodi-Ann.
The South African Constitution states that in order to promote the achievement of equality, legislative and other measures designed to protect those disadvantaged by unfair discrimination may be taken. One of these measures is affirmative action. For the constitutionality of measures in disputes the Court has opted for the ‘rationality’ standard of judicial review. This dissertation aims to critically analyse the rationality standard in the judicial defense of affirmative action measures through an examination of court cases and government legislation. It was found, firstly, that the role of rationality in the Constitution value structure as a whole is superficially confined to the legitimacy of governmental purpose. Its result excludes the full spectrum of competing interests and a determination of their relative weight in terms of an integrative account of the Constitution structure. Secondly, it was found that promoting the achievement of equality has proved to be problematic within the strictures of a rationality standard. It is concluded that to promote the achievement of equality requires a judicial review during affirmative action disputes to have regard to the impact of measures in their implementation within the ambit of right and value to equality. Legal standards are supposed to provide the basis to choose amongst varying competing ends or relate them in a meaningful way to an integrating normative standard in order to claim democratic justificatory and legitimizing value. The rationality standard needs to be amended to introduce a more substantive normative standard which ensures that the implementation of measures which passes constitutional muster also takes into account how it may affect other constitutional rights and values. The proportionality standard provides the degree of democratic accountability expected of rights- limiting measures by considering the impact which such measures may have on competing rights and the interests of those detrimentally affected by it.
The sustainability of the Rotterdam Rules in modern multimodal transport : the possibility of harmony for liability under multimodal carriage contracts.
(2015) Matshinga, Linda Innocent.; Lamb, Deepa.
With the advent of containerisation in the 1960s, there was a significant need to alter the traditional legal approach to the long-distance haulage of goods. The use of containers made it possible for goods to be transported by different modes of transport from their point of origin to their destination without there being a need for unpacking in order to sort or verify them during the process of being moved from one mode of transport to another. This led to an increase, internationally, in the use of multimodal transport contracts for long-distance haulage. In the event of loss, damage or delay to the goods involved in multimodal transport, shippers and consignees desired to deal with a single operator who would bear responsibility for the entire transport in lieu of pursuing several unimodal carriers. Multimodal transport, however, is being operated in circumstances where the current international cargo liability regime for the carriage of goods is not harmonised i.e. the law of carriage is substantially influenced by unimodal transport conventions. The current carriage regimes are out-dated and unsuitable to deal with multimodal carriage. A cargo claimant whose goods are lost, delayed or damaged during international multimodal transportation is confronted with numerous difficulties in establishing liability under a multimodal carriage contract as he may find himself dealing with a number of different liability regimes. This becomes even worse when the stage during which the damage occurred cannot be localised and therefore it is not clear which unimodal liability regime is pertinent. There have been several calls from different authors for a true multimodal convention, covering all aspects of “door-to-door” multimodal carriage to be developed. The question that arises is whether the recently formed United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (The Rotterdam Rules) has what it takes to meet the demands of modern multimodal transport and if it does, why then are states reluctant to ratify it. This study aims at examining the scope of application of the Rotterdam Rules in multimodal transport and its implications for the liability problems associated with multimodal transport. It will however not focus on the basis of liability, limits and other matters offered by the Convention.
Legislation regarding the role of the state and NGOs in addressing trafficking in persons : a focus on sexual exploitation in South Africa and Brazil.
(2015) Mellon, Andrea Claire.; Balogun-Fatokun, Victoria Aderonke.; Kreston, Susan.
No abstract available.
Advance directives and euthenasia in frail care and the terminally ill.
(2015) Chetram, Alicia.; Maropeng, Norman Mpya.
Abstract not available
Harmful cultural and traditional practices : a roadblock in the implementation of the convention on the elimination of discrimination against women and the Maputo protocol on women's rights in Tanzania.
(2017) Msuya, Norah Hashim.; Ntlama, Nomthandazo.
The focus of this study was largely on the effect of harmful cultural beliefs and practices regarding women’s rights as enshrined in international, national and regional legal instruments that apply to the Tanzanian legal framework. The study examined and provided an overview of relevant aspects of existing culture and traditions that were found to be in conflict with the provisions of Tanzania’s Constitution and domestic legislation. In light of the findings, there is an urgent need for the reform of various legislations in order to adhere to the resolutions of the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Maputo Protocol. A literature review was conducted to analyse the judicial decisions in Tanzania and other African countries in terms of the domestication of international human rights instruments that protect the rights of women through due process of judicial review. This undertaking was underpinned by the prime purpose of this study which was to analyse the impact of culture and traditions on the implementation of CEDAW and the Maputo Protocol in the Tanzanian context. The study revealed that some cultural beliefs and traditions in Tanzania continue to subordinate, discriminate against and harm women in the context of family, clan and community life. The values that are entrenched in customary law practices are used to justify the violation of women’s human rights. Many cultural practices that subject women to abuse continue to prevail despite the existence of appropriate domestic legislation that prohibits such practices. This study discovered that several discriminatory laws that negatively impact women’s rights are still enforced in Tanzania and that intentions to amend these laws and to remove discriminatory provisions have been hindered by strong traditional resistance. It was also established that, notwithstanding the provisions of international human rights instruments and the Constitution of the United Republic of Tanzania, which clearly prohibits any form of discrimination through the recognition of the equality of all human beings and guaranteeing equality and protection of all before the law, some judges still do not find it unjust to make decisions based on discriminating legislation. Rather, these judges choose to make decisions based on harmful customary rules without consideration of human rights principles that are enshrined in the country’s Constitution. In these circumstances, they persist in presenting divergent views on the interpretation of the rules. 214585778 Based on the findings of this study, it is argued that, in order for customary practices to make any meaningful impact of the lives of women in Tanzania and in Africa at large, these practices must be EXERCISED within a human rights framework. Furthermore, full domestication of international human rights instruments that protect women is of paramount importance in the implementation of women’s rights to strengthen the hands of law enforcers. However, the application of the law alone is limited in addressing women’s rights, as the stereotyped mind-set of Tanzanian and many other African societies needs to be CHANGED for a better realisation of women’s rights.
Critically evaluating the machinery of the Domestic Violence Act 116 of 1998 for combating domestic violence in South Africa.
(2017) Sibisi, Siyabonga.; Khumalo, Khulekani.
There is an international law duty on South Africa in terms of the Convention on the Elimination of Violence Against Women (CEDAW) and the Convention on the Elimination of Violence Against Woman (CEVAW). Section 12 (1) (c) of the Constitution of the Republic of South Africa, 1996 guarantees a right to be free from violence either from a public source or a private source. South Africa ranks amongst the most dangerous countries in the world. It is submitted that intimate partner violence is at its peak. Domestic violence is a direct violation of various other rights including the right to life, equality, human dignity, privacy, labour and housing. The Domestic Violence Act 116 of 1998 (the DVA) was passed as a means to combat domestic violence primarily by issuing protection orders to victims of domestic violence. This dissertation affirms that the protection order is the core machinery in the DVA for combating domestic violence. However it is further submitted that there are other machineries within the DVA that may equally be effective. It is trite that domestic violence still rears its ugly head. There are various causes for this. On one hand, some argue that the machineries are ineffective, and on the other hand, some argue that they are not being properly implemented. Therefore, the purpose of this dissertation is to set out the core machinery for combating domestic violence and then to critically examine the advances made in the implementation of the same machinery, focussing primarily on the criminal justice system and the challenges they face while implementing the DVA and providing possible solutions.
Developing a legal framework that protects and promotes the sexual and reproductive rights of children as described in international law: what can Nigeria learn from South Africa.
(2017) Ehimaun, Benedicta.; Sarumi, Rofiah Ololade.; Strode, Ann Elaine.
No abstract provided.
The COMESA-SADC-EAC free trade area: Rules of origin – an impediment to regional trade and economic integration.
(2018) Qoto, Lackson; Stevens, Clydenia Edwina.
The Tripartite Free Trade Area is a regional economic integration initiative that brings together 26 African countries belonging to the Common Market of Eastern and Southern Africa (COMESA), the Southern African Development Community, (SADC) and the East African Community (EAC) regional economic communities (REC’s). Among the main objectives of the TFTA is the creation of a large single market with free movement of goods and services and the promotion of intra-regional trade. To this end, the tripartite member states undertake to progressively eliminate all tariffs and non-tariff barriers to trade. Despite concerted efforts to remove barriers to trade among African countries, non-tariff barriers (NTBs) remain an obstacle to regional economic integration and thus reduce investment in the region. Among these NTBs are rules of origin (RoO). RoO constitute an essential element of preferential trade agreements (PTAs) to ensure that only eligible products receive preferential treatment. Overlapping membership to the COMESA, SADC and the EAC has led to the proliferation of RoO regimes among the tripartite member states that are often restrictive, highly protectionist and different in detail and application. Negotiations on RoO in the TFTA have shown that it is difficult to agree on a common RoO standard. Against this background this dissertation discusses the role played by RoO in the multilateral trade system. It examines the RoO applicable in the COMESA, SADC and EAC REC’s and assesses the impact of these RoO on intra-regional trade and economic integration. Furthermore, the dissertation examines the legal framework of the TFTA Annexure on RoO (Annex 4 on RoO) and conducts a comparison of the RoO criteria employed in the TFTA, the Association of Southeast Asian Nations (ASEAN) FTA and the Southern Common Market (Mercusor). The dissertation shows that while COMESA and EAC RoO are similar and relatively simple, SADC RoO are complicated and restrictive. The study further shows that Annex 4 on RoO has been designed in a manner that it is trade facilitating and thus has the potential to increase regional trade and economic integration. The dissertation offers policy makers modest suggestions that can be adopted to address the problems of divergent RoO regimes in the tripartite territory and improve public-private sector participation in the design an appropriate RoO regime.
Do the words ‘a public official or other person acting in an official capacity’ in s 3 of the Prevention and Combatting of Torture of Persons Act 13 of 2013 conflict with s 12(1)(d) of the Constitution of the Republic of South Africa?
(2017) Larkin, Marc Jonathan.; McQuoid-Mason, David Jan.
No abstract provided.

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