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ItemTo what extent do SPS measurers impact on market access for developing countries: a case study of South Africa.(2016) Mutamba, Tendai.; Stevens, Clydenia Edwina.No abstract available. ItemA critical evaluation of the efficacy-validity criterion of Kelsen's Theory of Revolutions with especial regard to selected case-studies.(1989) Cohrssen, Friedrich Karl.; Hoexter, Cora.The efficacy-validity criterion of Kelsen·s theory of revolutions can be impugned in both its theoretical and practical dimensions. The philosophical foundation of this criterion is contained in the Is-Ought dichotomy between which there exists, according to Kelsen, an "unbridgeable gulf". The questionable nature of this premise is borne out by empirical examination in showing that there exists a necessary and substantial connection between the Is of socio-political and factual reality and the Ought of normative ideality, which far exceeds the minimum of effectiveness which Kelsen is prepared to concede as forming the content of the Ought. This becomes more apparent when a specific examination of this dichotomy is undertaken in relation to the efficacy-validity criterion, a special case of Is-Ought. Firstly, in its theoretical dimensions, it is clear that there exists a necessary and conditional relation between the efficacy of a single, individual norm and its validity. Secondly, and more significantly, there also exists a substantial connection between the efficacy (sociological sphere) and the validity (normative sphere) of the legal order as a whole. This is borne out by an examination of the pivotal Grundnorm conception which Kelsen postulates as forming the ultimate, presupposed 'Ought' validating a given legal order. Even from a theoretical perspective, it is clear that this conception is predicated on more than just the minimum of effectiveness which Kelsen concedes for it. In actual fact, this fundamental norm, which validates the legal order, is a product of the very "impurities" of sociology, politics, morality, justice, history, ideology etc. which Kelsen is so vehement in delimiting from the purview of bis Pure Theory of Law. The examination of this conception in its practical applications in dynamic revolutionary situations further underscores this point and, at the same time, exposes its limitations. This can be perceived in the fact that since the destruction of the Grundnorm of the old legal order need not be done contemporaneously with the positing of a new Grundnorm, Kelsen·s revolution theory admits of the possibility of there being a hiatus in the legal system. More significantly, the shortcomings of the Grundnorm conception highlight the deficiencies and inadequacies that inhere in Kelsen·s efficacy-validity criterion with which the Grundnorm is in extricably interlinked. As a result, and in order to reflect more adequately the underlying politico-sociological realities of revolutionary situations, additional and more flexible criteria are suggested in order to supplement the inadequacy of, or, alternatively, to limit the socially undesirable consequences of the employment of efficacy-validity in vacuo. In so doing, the necessary overlap between efficacy and validity in its practical dimensions is further underscored. It is especially in the critical evaluation of the relevant revolution cases that the practical inadequacies and uncompromising rigours of the judicial employment of this criterion are demonstrated. It is also noteworthy that the judges in certain revolution cases should have departed so markedly from the strict Kelsenism reflected in this criterion, by the employment of additional limiting principles. It is clear that while efficacy remains probably the dominant test of legality, its adoption as a blanket test of legality cannot be sustained. This holds equally true within the sphere of the international legal order. Although this criterion may be readily reconcilable with the traditional criteria of statehood (all of which are based. on effectiveness) this is no longer the case in modern state practice where further limiting and, at times, contradictory principles have been evolved to serve as criteria of legality. ItemThe board of directors as a governance mechanism in South Africa: an agency theory perspective.(2018) Steyn, Blanche.; Stainbank, Lesley June.; Kwenda, Farai.The changed legislative landscape of the 2008 Companies Act required a rebalancing of the agency relationship between the board of directors and shareholders given the more onerous statutory oversight and accountability requirements. This study investigates the relationship between the board and firm value of 84 companies on the SRI index between 2012 and 2014, separating the governance role of the board into their corporate control and managerial labour roles using uniquely constructed indexes. Fixed effects with generalised least squares estimations were used to assess the relationship between the corporate control and managerial labour of the board and various proxies for firm value. As board level controls need time to filter through to firm value the study also considered a negatively lagged relationship to firm value. The study expands on the practice of constructing indexes in governance studies by constructing two control indexes to measure quality assurance and company control indicators as well as the control index (CI) representing the corporate control role of the board and the managerial labour index (MLI) representing the managerial labour role of the board. The results show that both the CI and MLI indexes are positively associated to return on assets a performance measure controlled by the board but negatively related to next year’s return on assets, suggesting a short-term focus of the board’s governance role of a time-horizon problem. However, the CI and MLI indexes are positively associated to enterprise value and next year’s enterprise value indicating that the more dispersed shareholders in the market value the governance role the board as an alternative to shareholder monitoring. The association between MLI and Tobin’s Q and next year’s Tobin’s Q is small but negative. The latter can be attributed to the increased statutory responsibility of shareholders regarding board remuneration, and an upward pressure on director’s remuneration to compensate board members for their increased liability risk. A more in-depth study on the root cause of the changed association between return on assets and next year’s return on assets is an area of future research. ItemMaking a case for "informal settlement upgrading": in search of a constitutional rights-based approach to assist the state in implementing the right of access to adequate housing.(2017) Mdabe, Lindokuhle Percival.; Govender, Karthigasen. ItemAn analysis of the international regulation of hazardous waste from a South African perspective.(1996) McCann, Howard Earle.This dissertation briefly explains the effects of continuing the hazardous waste trade, followed by a discussion of Thor Chemicals as a local example of this trade and its effects, before going on to discuss the international attempts at trying to curb this trade. The focus of attention will then turn to the merits and demerits of imposing an international ban. Finally, the document will conclude with a critical analysis of the law and policy governing hazardous waste in South Africa and possible suggestions to enable effective regulation of such waste in the future . ItemCodification: its evolution, obstacles and achievements; and its value in South Africa.(1984) Farran, Susan Elizabeth.; Milton, John Robert Landrey.; Baxter, Lawrence Gerald.No abstract provided. ItemThe regulation of road transportation in South Africa.(1986) Plasket, Clive Michael.; Baxter, Lawrence Gerald.No abstract provided. ItemInformal settlements, legislation and planning in South Africa.(1996) Smith, Donovan.; Milton, John Robert Landrey.Informal settlements in urban areas In South Africa are a result of urbanisation and the inability of past legislation to adequately accommodate informal settlements. The unwillingness of past governments to accept and plan for informal settlements and the resultant lack of infrastructure has and continues to increase the negative impact of informal settlements on the environment. Democracy in South Africa has heralded an era of Constitutional Supremacy. Legislation must be consistent with the constitution. A future constitution is likely to include a right to housing, as well as property and environmental rights. These rights as well as the framework provided in the Constitution for the different levels of government have important implications for informal settlements. The government will be unable to provide formal housing for everyone. Informal settlements will therefore need to form a part of a solution to the housing crisis in South Africa. If the negative environmental consequences of informal settlements a to be minimised, and informal settlements are to provide safe and secure shelters then South Africa will require effective planning legislation. Planning legislation in South Africa is presently fragmented and ineffective. This is also true of land and housing legislation. The Prevention of Illegal Squatting Act 52 of 1951 is a reactive piece of legislation which does not have a constructive role to play fn planning for informal settlements. Relatively new legislation such as the Development Facilitation Act 67 of 1995 and the Less Formal Township Establishment Act are crisis orientated and -are not alternatives to coherent long term planning legislation. Various national discussion documents pertaining to planning, land and housing should be used to formulate comprehensive planning legislation. It must be ensured that this legislation provides for the needs of informal settlements. It should also ensure that informal settlements are the responsibility of all three tiers of government, and local and provincial government have sufficient powers to assist in providing a solution to the problems of informal settlements. The legislation should also incorporate the concept of Environmental Impact Assessment to ensure that development is sustainable. Present legislation is inadequate. Effective planning legislation must be established in order to ensure informal settlements are able to provide safe and healthy environments. ItemGender Dysphoria Syndrome: medical aspects and legal consequences.(1985) Gilson, Pamela Dawn.;No abstract provided. ItemA critical examination of South African legislation pertaining to the abused child.(1994) Dickerson, Tracey-Leigh.; Lupton, Michael Leslie.; Schwikkard, Pamela-Jane.The physical and sexual abuse of children is primarily a complex, insidious socio-psychological . problem, and secondly, a legal concern. Accordingly, any attempt to examine the phenomenon from a legal perspective, requires by necessity, an acknowledgement of the multi-dimensional nature of the problem. This thesis attempts to provide the reader with a comprehensive overview of the current state of medical, psychological and social knowledge on child physical and sexual abuse. Following on this, an examination is made of the legislation pertaining to the protection of the abused child within the home and the courtroom. In respect hereto, review is made of the development of the legal response to child abuse, those provisions within the Child Care Act 74 of 1983 pertaining to child protection, the issue of a legal definition of child abuse, corporal punishment and the rules of evidence and procedure impinging upon the child witness. During the course of this thesis, regard is had primarily to current psychological research findings. This is particularly apparent in respect of issues dealing with the alleged inferiority of the child witness in the courtroom. Here, psychological evidence is provided to show that major discrepancies exist between the positive view of the child witness, which is emerging from current experimental studies, and the skeptical approach to such a witness by the legal system. Throughout the thesis, a call is made for the realignment of the law with medical, psychological and social realities. Unless such takes place, the legal response to child abuse will remain an ineffective and harmful experience for any unfortunate child victim. ItemDo 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. ItemAn analysis of the Labour Relations Act 66 of 1995 as it relates to derogatory comments posted by employees on social media.(2018) Munian, Sherilyn.; Pete, Stephen Allister.; Hulme, David Haigh.With the rise of the digital age, social media has become a tool for communication in the modern world. The law on social media in South Africa is underdeveloped and there is an absence of current legislation that specifically deals with social media. Employees are often under the impression that they are permitted to say anything they desire on social media platforms without consequence. Problems arise when employees take to social media to vent their frustrations about work and post derogatory comments about their employer(s). In the absence of legislation specifically regulating the use of social media, an employer will often rely on the Labour Relations Act 66 of 1995 in order to dismiss an employee for misconduct of the kind mentioned above. Employees for their part will often cite constitutional rights such as the right to freedom of expression and the right to privacy as defences against being unfairly dismissed for their social media posts. This study aims to determine whether or not the Labour Relations Act 66 of 1995 is still fit for purpose in view of the rapid and exponential rise of social media during recent years. The main focus of this study is on the dismissal of employees for posting derogatory comments about their employees on social media and seeks to determine whether or not South African Labour Legislation has adequately kept pace in this area. ItemThe 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. ItemHas the LM and Others v Government of the Republic of Namibia case closed the door on the claim of unfair discrimination by HIV positive women alleging to have been coerced or forced into being sterilised because of their HIV status?: A critical analysis of a possibility of a class action or a public interest action on behalf of South African women living with HIV who have been sterilised without their informed consent.Khumalo, Lindiwe Rosetta.; Badul, Chantal Jacqueline.; Strode, Ann Elaine.No abstract provided. ItemA critical and comparative analysis of the expression "ordinarily resident" as a criterion for determining the place of residence of an individual in the context of income tax legislation in South Africa and certain other juristictions.(2016) Hardie, John Andrew.; Williams, Robert Charles.The nexus between a natural person’s income and their liability to tax in South Africa on their income, regardless of the location of its source, subject to statutory relief and international agreements, is the individual’s status as an income tax resident in South Africa. The criterion for determining the place of residence of an individual in the context of income tax can be uncertain and difficult to determine due to the case law approach imposed by the definition of the term ‘resident’ in the Income Tax Act. Through an analysis of the legislation, case law and guidelines, primarily in South Africa and the United Kingdom, the dissertation queries whether the current legislation and case law in South Africa is adequate to deal with the determination of the place of residence of an individual in the context of income tax legislation in South Africa and if a new statutory definition of residence should be considered. ItemDeveloping 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. ItemSentencing juveniles according to the Child Justice Act: a critical evaluation of application of the principle that "detention must be a measure of last resort and for the shortest possible period of time" in the case law.(2016) Gurahoo, Juanita.; Bhamjee, Suhayfa.The 1990s gave momentum to the Child Justice Movement motivated by the need for a separate criminal justice system to deal with juvenile delinquency. The movement’s focus was on law reform, child detention, and restorative justice. International instruments endorsed by South Africa contributed to the promulgation of children’s rights under the Constitution. The Constitution brought about change regarding the treatment of juvenile delinquents in conflict with the law. Section 28 emphasises that the best interests of the child is of paramount importance, apropos of every matter that affects the child, including detention. The main objective of the CJA is to divert juvenile delinquents away from the criminal justice system by means of restorative justice conditioning to prevent re-offending. However, the CJA acknowledges that diversion may be unsuitable, inadequate, and unsuccessful, hence the creation of child justice courts to sentence juvenile delinquents. The CJA does not only set out the rights of children, but also it lays down when imprisonment may occur, the various sentences that may be imposed, and the benefits of treating children differently from adults. The guiding principle behind the CJA is that children should not be treated more severely than adults; and one must have regard to international instruments which state that detention should always be a measure of the last resort and for the shortest possible period. Despite these fundamental legislative changes, the research has indicated that the majority of sentencers have imposed lengthy detention sentences for juveniles who have committed serious crimes in violation of the constitutional principle that juvenile detention must be a measure of last resort and for the shortest possible period. It was found that the principle: ‘juvenile detention should be a measure of last resort and for the shortest possible period’ is not only vague, but creates inconsistency during sentencing because of its inability to give objective sentencing guidelines and the operation of excessively wide judicial discretion. This results to numerous appeals and reviews of sentences, while children’s rights are not upheld in the most stringent manner as required by the Constitution and international instruments. These juvenile rights violations can be attributed to the fact that the seriousness of the offence was found to be overemphasised at the expense of the youthfulness of the accused. Furthermore, it was found that there is little deviation in the length of sentences imposed under the CJA and that of the CPA. Similarly, there seems to be little deviation between the sentences imposed on juveniles and those that are imposed on adults. All the while restorative justice is ignored. The aim of this dissertation was to investigate the legislative sentencing principles for juveniles aged 14 years and older who have committed serious crimes. This dissertation questioned whether the constitutional entrenchment of juvenile rights and the promulgation of the CJA had made any substantial difference in the types of sentences and sentence duration imposed on juveniles who commit serious crimes. It was recommended that the legislature should provide an objective juvenile sentencing guideline to limit the operation of excessively wide judicial discretion and combat the vagueness sentencers experience of the principle that juvenile detention should be a measure of last resort and for the shortest possible period. The Dutch are renowned worldwide for their liberal sentencing regime promoting restorative justice practices. Hence, it was recommended that the legislature should opt to create an objective juvenile sentencing guideline which is based on the Dutch bos-polaris sentencing guidelines. Furthermore, it was recommended that restorative justice sentences should be emphasised and endorsed amongst sentencers. The CJA is primarily based on the premise that restorative justice 6 will allow for the rehabilitation and reintegration of juvenile offenders. This premise is supported by academics who have frequently asserted that juveniles are more prone to rehabilitation than adults; and that research has found juvenile rehabilitation to be highly successful. ItemCritically 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. ItemPregnancy in the workplace: a consideration of section 187(1)(e) of the Labour Relations Act.(2016) Kumwenda, Malumbo.; Whitear-Nel, Nicola Jane.Prior the Republic of South Africa’s Constitution Act 108 of 1996, standards regarding fairness and equality of women in the labour market left much to be desired. Additionally, section 187(1)(e) of the Labour Relations Act 66 of 1995(‘LRA’), has become one of the fundamental provisions addressing the lack of equality between men and women in the labour force, by classifying a dismissal based on pregnancy as an automatic unfair dismissal. The importance of this section is to signify to employers that pregnancy is a natural biological process that should be embraced within society and not a justifiable reason for dismissal. The overall discussion of the paper illustrates the effectiveness and the limitations of S187(1)(e) in providing protection to pregnant employees. It will begin by interpreting the wording of the section to explain the extent of protection provided to pregnant employees. Thereafter, a detailed study of case law will demonstrate the courts’ approach dismissal based on pregnancy. The paper will then explain the limitations of S187(1)(e) in that it does not provide absolute protection from dismissal, and then briefly discuss the remedies available for unfairly dismissed pregnant employees. The conclusion of the paper will summarize the overall impact of S187(1)(e) in addressing discrimination against pregnant employees. ItemProtecting fixed-term contract employees In South Africa: the past and the present.(2016) Botha, Gregory Marcellus.; Whitear-Nel, Nicola Jane.The aim of this dissertation is to assess whether or not fixed-term contract employees are adequately protected in South Africa as those who form part of a non-standard workforce. This assessment will provide a detailed account of the fixed-term contract of employment along with insight into the role fixed-term employees play in the South African labour market and it will explore the reason for the existence of the fixed-term contract of employment and the vulnerability of those employed under such contracts. The paper will then explore the provisions (both past and present) of South African labour legislation affecting fixed-term contract employees and give an opinion on the effectiveness of such provisions in protecting the rights of the employed. This will include a discussion of the relevant jurisprudence and identify a number of shortcomings associated with the relevant legislation prior to recent amendments. Those relevant amendments will then be detailed and summarized in order to establish their effectiveness in remedying these shortcomings. The paper will close with recommendations with reference to foreign jurisdictions and a concluding remark on the present state of the law protecting fixed-term contract employees in South Africa.