Law

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The World Trade Organization's trade agreement on agriculture : a comparative analysis of South Africa and Nigeria.
(2013) Ifeoma, Ani Oluchi.; Mneney, Edith.
Sub-Saharan African nations are highly dependent on the agricultural sector for livelihoods. South Africa and Nigeria depend on agriculture due to the availability of abundant land, labour and natural resources. According to the theory of comparative advantage a state exports the products that it has a comparative advantage in and imports those where it does not have a comparative advantage. This is facilitated by international trade. International trade is defined as trade among nations that enables a nation to buy certain products that it cannot produce from other nations at a cheaper rate. Furthermore, it is expected that every sovereign state would be able to provide not only food and water but also good access to sufficient food and water to its people. Section 27.1b of Chapter 2 of the South African Constitution of 1996 and Article 16 of Nigeria’s Constitution of 1999 enshrine this provision. A number of factors impact food security. The first is international trade. This is spelt out in the World Trade Organization (WTO) Agreement on Agriculture (AoA). The agreement establishing the WTO is commonly known as the “Marrakesh Agreement.” It was signed in Marrakesh, Morocco on the 15th of April, 1994, at the end of the Uruguay Round of Multiple Trade Negotiations. The AoA consists of three pillars: market access, export subsidies and domestic support .Market access requires all parties to the AoA to remove non-tariff barriers which comprise of import quotas and restrictions and convert them to tariffs; a process known as ‘tariffication’. States are also obliged to reduce export subsidies at the same time as increasing their imports. Domestic support, states are to remove subsidy it gives to its people a process that increases the price of goods. Another factor is trade liberalization. This study examines the effects of WTO agricultural trade liberalization on food security and the mechanisms available to address this issue. It focuses on the food security implications of the WTO AoA and asserts that the AoA favours agricultural producers in developed countries. The study seeks to ascertain the extent to which the realization of the objectives of the agreement will promote food security by looking into the abovementioned three pillars and their relationship with food security.
Unequal bargaining power in the law of contract : an analysis of its common law treatment by the courts and the devices that can be used to develop inequality as a defence to challenge the validity of a contract.
(2013) Lugomo, Nonstikelelo Pearl.; Louw, Andre Mouton.
No abstract available.
A comparative analysis of the domestic regulatory systems aimed at eradicating the practice of mercenarism without criminalising the legitimate private military and security industry.
(2013) Kimble, Matthew Blain.; Bosch, Shannon Joy.
There is general consensus that mercenarism is and should remain prohibited. The difficulty that has arisen is firstly one of defining the exact nature of mercenarism, and more specifically what actions constitute mercenary actions. A further difficulty arises in that much of the legislation intended to outlaw mercenarism is impacting on the legal activity of private military and security contractors, who fall short of the definitional requirements of mercenarism. The two groups being so closely linked that they are often mistakenly conflated . There is currently a need to develop a response to the private military security industry, which is better suited to effectively regulate their activities, whilst also effectively criminalising the activities of those who actions amount to mercenarism. The dissertation therefore sets about analysing how these two distinct sectors: mercenaries and private military security companies, are regulated at an international and domestic level. It then uses the lessons learnt from these regulator attempts, and the various policy considerations which countries have to make, to propose a way forward in creating an effective regulatory system for mercenaries and private military companies at an international and domestic level.
The rule of law, the principle of legality and the test for rationality: a critical analysis of the South African jurisprudence in the light of the separation of powers.
(2016) Mzolo, Nkosinathi.; Freedman, David Warren.
Over the past twenty (20) years the South African jurisprudence has been shaped by numerous factors that emanate primarily from the interpretation of the Constitution. As a result the study, knowledge and philosophy of law has witnessed vital developments which at some point seem to cause confusions in the legal fraternity. Among other confusions that exist is what constitutes “rationality” in law, what factors are relevant in defining rationality, how has rationality been defined and how has it been applied? The thesis explores various instances where our courts particularly the Constitutional Courts and the Supreme Court of Appeal has defined and applied the rationality test when testing for the exercise of public power by the public functionaries. To begin with, our courts have held that rationality is a central principle under the principle of legality which is an implicit term to the study of the rule of law. The rule of law itself has been held to be an implicit term to the Constitution of the Republic of South Africa and that all actions will only be valid if they comply with the rule of law as a constitutional value thereof. However this is not to imply that other values of the constitution like transparency, openness and accountability are less important than the rule of law but most litigation has occurred under rule of law, hence why the focus of this thesis is on the rule of law. Under this legality principle, there are a lot of principles like the principle of authority but rationality appears to be the most significant and the courts have focused mostly on it. In defining what legality rationality is, our courts have pronounced that it is a legal safety-net applicable to every exercise of public power but more particularly where no constitutionally defined right has been violated, it protects individuals against the abuse of power. The courts initially envisaged a ‘poor rationality”, however when comparing how the principle has developed over years it is clear that the principle has been used variably. At some point rationality has been applied leniently while at some point more stringently without any clear guidance, which creates uncertainty as to the correct legal position. Among other considerations of the thesis includes the fact that when the rationality principle is stringently applied, it has been held to threaten the principle of the separation of powers, however when the same principle is leniently applied, it has been held to fall short of the required standards and the demands of the constitutions especially the transparent basis of the decisions. And when this principle is applied variably, it has been seen to undermine the very principle of the rule of law that it is meant to give effect to; this is because the rule of law demands that law should be static and predictable. This confusion stimulates the construction of the thesis as different developments have been formulated but most interestingly proposes the different standards that should apply to executive and legislative decisions.
A critical analysis of the definition of “property” in clause 1 of the expropriation bill b4d – 2015.
(2017) Otten, Edward.; Freedman, David Warren.
Property remains a contentious issue in the new South Africa due to the unequal distribution of wealth. At the heart of this emotive issue is the question of land reform - owing to the history of racially based land dispossession. Politicians have been discussing using expropriation as a method to transform land ownership and redress past injustices. The Expropriation Bill has been introduced in this context with the aim to assist the state in its land reform policies. The Bill contains a definition of property (which is capable of expropriation) that simply directs the reader to Section 25 of the Constitution, which itself has no express or limited definition of property. The logical question which faces scholars, politicians, foreign investors and the man-on-the-street therefore is, “What constitutes property for the purpose of section 1 of the 2015 Expropriation Bill?”
Judicial recourse by public sector employees : applying administrative law to labour cases.
(2016) Jackson, Sean Alan.; Kruger, Shaun.
Within a public employment setting, both administrative and labour law jurisprudence continue to advance the fundamental rights and protections afforded to individuals by the Constitution under section 23 and 33. Although the Constitutional Court (arguably) seems to favour the determination of one right over another, there exists no legal basis – other than a policy basis – for such a direction. In the context of the employment of public officials, the Constitutional Court side-lined administrative law jurisprudence. The purpose of this dissertation is to explore whether public sector employees are still able to bring an application in a court of law under administrative law even when such is to be applied to quintessential labour cases. This dissertation has analysed the meaning of administrative action under section 33 and PAJA in Chapter 2 and, in Chapter 3, how the courts have approached administrative law within labour cases, uncovering important judicial arguments and direction. This leads to Chapter 4 where since Gcaba, case law and academic arguments have shown that the extent to which section 33 and PAJA apply to public-sector employment depends primarily on how one pleads. The research methodology used in advancing these objectives has comprised solely of desktop literature review of case law, statute, various text books and academic journal articles. In the absence of legislative intention to deny public sector employees their right to administrative justice, it is shown that it is not uncommon for more than one constitutional right to apply to one set of facts. It is argued that three causes of action exist under PAJA, the LRA and legality and that these causes of action are still available to litigants, even though the court in Gcaba provided the general rule that administrative law no longer applies. The Constitutional Court’s explicit recognition on pleadings has resulted in lower courts providing protection to public sector employees by hearing matters pleaded under PAJA or the principle of legality as the chosen forum. A new direction of administrative law jurisprudence is being realised by lower courts in labour cases, which correctly balances the intention of the legislature and favourably adds to the notion that rights are cumulative and complimentary of each other. Chapter 5 concludes all the relevant literature as well as providing several recommendations. Although PAJA and legality are applicable, the LRA should be the first port of call. It would be beneficial for the Constitutional Court to re-look at this area of law with the aim of advancing fundamental rights.
To what extent do sps measures impact on market access for developing countries: a case study of South Africa.
(2016) Mutamba, Tendai.; Stevens, Clydenia Edwina.
Abstract not available.
Local government in the constitutional dispensation: defining the limits of local government’s legislative and executive authority.
(2020) La Foy, Gabriella Bernadette.; Devenish, George Edwin.; Freedman, David Warren.
Close on twenty-five years have passed since the adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution). The division-of-powers provisions of the Constitution marked a move away from the previous vertical, centralised system of government towards a more horizontal, decentralised form of government. The foundation of the legal system shifted from a system of parliamentary sovereignty to a model based on constitutionalism, the rule of law, and the observance of human dignity, equality and freedom. This study examines the extent to which the division-of-powers provisions in the Constitution have been realised since the adoption of the Constitution from a local government perspective. This work contributes to earlier research by presenting a comprehensive review of state practice to date. The research was conducted via a review of published work including books, journal articles, dissertations, studies, and working papers. Sources for the investigation include legislation, policy documents, government commissioned reports, white papers, budgets and minutes of parliamentary committees. Using these sources, the judicial interpretation of the constitutional scheme for the allocation of powers is examined and compared with the legislative, fiscal, intergovernmental, and administrative practice of governance in democratic South Africa. The thesis draws together trends across a number of areas and presents a composite picture of the current status of government, comparing the constitutional vision for the division of powers between the spheres of government with current practice. In so doing, it aims to identify the manner in which the legislature, executive and judiciary envisage the constitutional division of powers; the extent to which the different approaches adopted by each branch cohere or conflict with one another and the manner in which they have been implemented over the past twenty years. In addition, the thesis also examines possible reasons for the challenges identified in the implementation process before concluding by suggesting interventions which could improve the efficiency and efficacy of current state administration.
The voice of children in divorce proceedings: a critical consideration of the provisions in the Mediation in Certain Divorce Matters Act 24 of 1987 and the role of the Family Advocate in divorce proceedings. Is it not time for an overhaul of this Act?
(2022) Botha, Mariska.; Clark, Brigitte Jennifer.
No abstract supplied.
Cyberdefamation: a comparative approach to how Zimbabwe can adapt in the digital era.
(2021) Hungwe, Brian.; Mnyandu, Siphesihle Nobuhle.
Society has since time immemorial sought to protect the reputation of individuals and provide scope for relief to vindicate the good name of the individual. The law of defamation has evolved over the centuries, in line with technological advancements, and growing standards of decency marking the progress of a maturing world. Common law has developed in defining defamation, its test and elements, and appropriate damages. In the 9th century, a slanderer's tongue could be cut as a penalty for damages. The development of the printing press in the 16th century, and radio in the 20th century, had the law reforming and adjusting to suit the technological advancements of the period. However, the development of the internet in the late 20th century has presented new significant challenges to the defamation law. The Internet is a global super-network used by millions of people the world over. This has provoked the need for a delineated legislative framework to redefine defamation law in line with technological advancements driven by the internet. This research will therefore evaluate the current state of defamation law in Zimbabwe in order to demonstrate the necessity of enacting law that adjust to the digital era, and offer protection to victims. The internet’s harm to reputation has been insidious, denying victims an opportunity for employment, company closures and devastating emotional trauma associated with reputational harm. The technological advancements have rattled the judiciary, and provoked scholars into research to provide ways in which the law could adapt and confront the emerging challenges, which had assaulted the traditional scope of defamation defining elements, publication, anonymity, jurisdictional and enforcement challenges, role of internet service providers and extent of damages. The internet has no respect for geographical boundaries, and could be used in via indeterminate routes, users, and jurisdictions. The Zimbabwean courts are yet to be confronted with complex cyber defamation related cases. The advent of the internet, is bound to present complex legal challenges for Zimbabwe’s legislative framework. Internet users are over 3.3 billion in the world, and half the population in Zimbabwe use the internet, representing about 2 per cent of the population in Africa. There is need for pre-emptive scholarly research to devise ways in which Zimbabwe can adapt in the digital era. There is death of precedents to provide scope for the development of common law. There are calls in various jurisdictions for countries to legally adapt to internet challenges, as internet communications are more ubiquitous than print and have the power to defame individuals. This research acknowledges that the law is failing to take into account changing realities technologically, and could lose credibility if the courts and scholars fail to respond applicably to changing times. Zimbabwe may face challenges of an unclear legislative frameworks, hence, this research becomes imperative.
A legal based evaluation and discussion of the gender discrepancy in the intellectual property industry.
(2021) Pillay, Kirshia.; Bellengere, Devarasi.
Intellectual property (IP) is protected by the law. 1 The law grants an individuals’ creation a monopoly as a return for their creativity. 2 It generates incentives for creativity, for the benefit of both the creators and the society at large. 3 Intellectual property rights (IPR’s) are imperative to foster innovation and creativity in society. The protection allows for individuals to embrace the originality of what they have invented or created as recognition and gain from whatever financial benefit could occur. Therefore, the purpose of IP law would fail if it failed to identify creators. There is growing evidence that current IP laws and policies have failed to identify and prioritise many creators, including women. 4 Although being an international issue, South Africa (SA) has a greater gender discrepancy within the IP industry and very little improvement is shown compared to other countries. 5 Africa is a continent that has been seen to be patriarchal and lack gender equity.6 Therefore, in specifically African and patriarchal countries, like South Africa, it is important to encourage IP regulation, to increase the participation and rights of women in the IP industry. Ultimately, aiding towards a decrease in the gender discrepancy in the IP industry. Findings will show that more can and should be done by the legislature for a faster progression. The following dissertation aims to discuss policy reform and development with reference to IP law. It suggests that the progress to eliminate the gender discrepancy seen in the IP industry is too slow and focuses on IP policy development. Additionally, the historical treatment of women, past laws, and current statistics will be discussed. Understanding this will guide an appropriate suggestion towards successful policy reform and implementation. Moreover, the IP industry, as per the title of this dissertation, encompasses all aspects of IP, such as the ownership, inventorship, and legal aspects of the field. Additionally, there are various factors that differentiate women including race, disability, economic circumstances and social circumstances, to name a few. In terms of this dissertation women will be discussed as a group. However, consideration will be given to women from developing countries when appropriate. 1 S Gregory ‘Intellectual Property Rights and South Africa’s Innovative Future’ (2008) 23 Trade Policy Report. 2 Ibid. 3 D L Burk ‘Bridging the gender gap in intellectual property’, available at https://www.wipo.int/wipo_magazine/en/2018/02/article_0001.html, accessed on 7 August 2021. 4 Ibid. 5 J Berger and A Rens ‘Innovation and Intellectual Property in South Africa: The Case for Reform’ April 2018, available at https://www.tralac.org/documents/news/1917-innovation-and-intellectual-property-in-south-africathe- case-for-reform-accessibsa-april-2018/file.html, accessed on 1 March 2021. 6 The World Bank ‘Gender Equality: Why it Matters, Especially in a Time of Crisis’ 2020, available at http://www.worldbank.org/en/news/opinion/2020/04/13/gender-equality-why-it-matters-especially-in-a-time-ofcrisis, accessed on 3 May 2021.

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