Faculty of Law

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    Rights of public servants in terms of the constitution: an examination of the right to political activity and freedom of expression of public servants as entrenched in the bill of rights
    (University of Fort Hare, 1997-01) Mdleleni, Henderson Mandisile
    Under the apartheid regime, a public servant was prohibited from, inter alia, disclosing official information, criticizing government policy or joining a political party. With the ushering in of constitutional democracy based on an enshrined Bill of Rights for everybody, the question which arises - which question is engaged in the opening chapter - is whether indeed, bureaucrats should not be accorded equal rights to political activity and freedom of expression as enjoyed by other persons
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    A Critical Analysis of the Regulation of Unit Trusts in South Africa
    (University of Fort Hare, 2004-09-30) Makukunzva, Bob
    The regulation of unit trusts as an example of the regulation of all financial investments in general is a fast changing and dynamic field of law, which is constantly evolving in order to keep pace with changes in the industry it regulates. It is apparent that the entire world's capital markets are grossly affected by fraud and misconducts that pose a challenge to the regulator to implement strict and counteractive legislative measures aimed at weeding out any potential misconduct.
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    Labour Dispute Resolution by Bargaining Councils and the Commissionfor Counciliation, Mediation and Arbitration: A Legal Analysis
    (University of Fort Hare, 2005) Lubisi-Nkoane, Nombulelo
    Bargaining councils are, together with the Commission for Conciliation, Mediation and Arbitration (CCMA), charged by the new Labour Relations Act 66 of 1995 (LRA) with the speedy resolution of collective and individual labour disputes. Although they perform a very important role, the labour dispute resolution function is under-researched in South Africa. In this regard, Jeremy Dephne1 has noted big gaps in information and understanding between the CCMA and its users.
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    Employment Equity Law and Women in the New South Africa
    (University of Fort Hare, 2005) Ntshingwa, Qaqamba
    Equality is a fundamental right which is entrenched in the South African Constitution. However men and women must not just be equal but they must be seen to be equal in all sectors including the Labour Market. The study deals with discrimination against women in the workplace. Historically South Africa was known to be a patriarchal state because of its apartheid laws which promoted and condoned discriminated against women.
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    Labour Dispute Resolution by Bargaining Councils and the Commission for Conciliation, Mediation and Arbitration: A Legal Analysis
    (University of Fort Hare, 2005) Lubisi-Nkoane, Nombulelo
    Bargaining councils are, together with the Commission for Conciliation, Mediation and Arbitration (CCMA), charged by the new Labour Relations Act 66 of 1995 (LRA) with the speedy resolution of collective and individual labour disputes. Although they perform a very important role, the labour dispute resolution function is under-researched in South Africa. In this regard, Jeremy Dephne1 has noted big gaps in information and understanding between the CCMA and its users.
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    International Trade Regulation and Environmental Governance in the WTO and the NAFT A: Selected Thematic Lessons for SADC in Transition
    (University of Fort Hare, 2005-12-13) Ndlovu, Lonias
    This study focuses on the theme of international trade regulation and environmental governance in the context of the WTO and the NAFT A with a view of extracting possible thematic lessons for SADC in transition. The theme is pursued through an examination of the trade and environment debate in its proper theoretical and historical context together with an examination of the trade and environment jurisprudence in the WTO and the NAFTA. From the case law analysed and critiqued, possible thematic lessons for SADC in transition are extracted.
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    International Trade Regulation and Environmental Governance in the WTO and the NAFT A: Selected Thematic Lessons for SADC in Transition
    (University of Fort Hare, 2005-12-13) Ndlovu, Lonias
    This study focuses on the theme of international trade regulation and environmental governance in the context of the WTO and the NAFT A with a view of extracting possible thematic lessons for SADC in transition. The theme is pursued through an examination of the trade and environment debate in its proper theoretical and historical context together with an examination of the trade and environment jurisprudence in the WTO and the NAFTA. From the case law analysed and critiqued, possible thematic lessons for SADC in transition are extracted.
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    An Appraisal of the Right to Education in Semi-Rural Post Apartheid South Africa:A Case study of Three Schools in Amathole District
    (University of Fort Hare, 2007-12-04) Machenjedze, Nyika
    This study is an appraisal of the right to education in semi-rural areas of post apartheid South Africa. The objective was to find out the extent to which the right to education is realized and in this regard, factors that hinder access and those that exclude children from school. It was carried out as a descriptive, qualitative research and a case study design was utilized. Data was collected through focus group interviews. There were three categories of focus groups which were interviewed, namely, learners; teachers and principals and school drop outs.
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    The Regulation of Insider Trading in South Africa: A Roadmap For an Effective, Competitive and Adequate Regulatory Statutory Framework
    (University of Fort Hare, 2008-01) Chitimira, Howard
    Insider trading is one of the practices that (directly or indirectly) lead to a host of problems for example inaccurate stock market prices, high inflation, reduced public investor confidence, misrepresentation and non disclosure of material facts relating to securities and financial instruments. Again it reduces efficiency in the affected companies and eventually leads to economic underperformance. The researcher observed that the South African insider trading regulatory framework has some gaps and flaws which need to be adequately addressed to ensure efficient and stable financial markets. Therefore, the aim of this research is to provide a clear roadmap for an effective, efficient, adequate and internationally competitive insider trading regulatory framework in South Africa. In order to achieve the above stated aim, the historical development of the regulation insider trading is critically analyzed. The effectiveness and adequacy of the Insider Trading Act, 135 of 1998 is also discussed. Furthermore, the prohibition of insider trading under Securities Services Act, 36 of 2004 is explored and analyzed to investigate its adequacy. The role of the Financial Services Board, the Courts and the Directorate for Market Abuse is also scrutinized extensively. Moreover, a comparative analysis is undertaken of the regulation of insider trading in other jurisdictions of United States of America, Canada and Australia. This is done to investigate any lessons that can be learnt or adopted from these jurisdictions. The researcher strongly contends that having the best insider trading laws on paper alone will not secure the insider trading problem. „ What is required are adequate laws that are enforced effectively in South African courts. Therefore an adequate insider trading regulatory framework must be put in place to improve the efficiency of South African financial markets‚ to maintain a stable economy, combat misrepresentation and non disclosure of material facts in transactions relating to securities.
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    Internally Displaced Persons and the Right to . ' Adequate Housing: An Appraisal of Operation Murambatsvina in Zimbabwe
    (University of Fort Hare, 2008-04-22) Zivania, Rodgers
    This dissertation examines the situation of internally displaced persons (IDPs) in terms of international law, with the right to adequate housing as the main concern. The issue of internal displacement is very topical at present, as there are over 25 million IDPs in the world today and the number is not decreasing, quite on the contrary. First and foremost, the definition of IDPs is under examination. I DPs and refugees seem to be two fairly similar categories of persons who need protection; therefore the issue of eventual similarities and differences between these two groups will be studied.
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    Internally Displaced Persons and the Right to . ' Adequate Housing: An Appraisal of Operation Murambatsvina in Zimbabwe
    (University of Fort Hare, 2008-04-22) Zivanai, Rodgers
    This dissertation examines the situation of internally displaced persons (IDPs) in terms of international law, with the right to adequate housing as the main concern. The issue of internal displacement is very topical at present, as there are over 25 million IDPs in the world today and the number is not decreasing, quite on the contrary. First and foremost, the definition of IDPs is under examination. I DPs and refugees seem to be two fairly similar categories of persons who need protection; therefore the issue of eventual similarities and differences between these two groups will be studied
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    The Interpretation Problems Surrounding GATT Article XXIV and their Implications for Multilateralism in the WTO System
    (University of Fort hare, 2009-12) Modiro-Marata,Mpho
    The proliferation of Regional Trade Agreements (RT As) has attracted a lot of attention in contemporary discussions of multilateral trade regulation. There were widespread attempts at regional trade agreements in the early 1920's but it is the current spate of RT As that continues to cause a lot of controversy among trade policy makers and analysts alike. There are compelling socio-economic and _political factors that make RTAs attractive tools for further liberalization of trade. Likewise, it can not be denied that the same presents the world trading system with challenges which if not managed could divide world trade as was experienced in the 1930's.
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    Abortion legislation and the right to life: resolving the predicament and fundamental human rights values
    (University of Fort Hare, 2009-12) Mbayiwa, Nokuthula
    Abortion legislation in South Africa takes a casual and very indifferent approach to human life. This is a direct violation of international standards upon which South African legislation is based. The fundamental purpose of law is to preserve and better human life, in an effort to prevent the recurrence of various ills and crimes that society has witnessed. The urgency in the protection of humanity comes from the knowledge of the ability of humanity to self-destruct and the ultimate desire to maintain global peace. Abortion legislation is divorced from the original purpose of law to preserve and protect human life in all its developmental stages.
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    The status of refugees and asylum in South Africa with reference to the implementation of the South African Refugees Act , No 130 OF 1998
    (University of Fort Hare, 2010-01) Mashiri,Jeslene
    This is an exploratory study on the implementation of the South African Refugees Act, No 130 of 1998 and the role played by service providers in the implementation process. The study was conducted at East London town in the Eastern Cape. Since this is a qualitative study, in-depth interviews were conducted on a sample of ten refugees/asylum seekers from Zimbabwe, Kenya, Ethiopia, Somalia and Ghana.
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    Xenophobia in South Africa: A Socio-legal Analysis
    (University of Fort Hare, 2011-02) Sibanda, Samukelise
    The ways in which xenophobia continues to express itself in South Africa deserve to be noted at an advanced study. Over the past 15 years the expressions of xenophobia have been accompanied by increased deaths, more discrimination, increase of stereotyping of people of African descent and increased violence towards non-nationals especially in the poorer parts of South Africa. Many of such xenophobic expressions have gone unnoticed and where they have been noticed, they have received little attention, leading to the exacerbation of the problem.
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    The efficacy of the United Nations in conflict resolution: a study of the response of the security council to the Darfur conflict in the Sudan
    (University of Fort Hare, 2012) Tambe, Endoh Fabrice
    After the First and Second World War, violent interstate and intrastate armed conflicts have befallen the global community. These conflicts have been accompanied by gross human rights violations and absolute disrespect for international humanitarian law. They also pose major threats to international and regional peace and security. The body charged with the responsibility of maintaining international peace and security is the United Nations. This study investigates the efficacy of the United Nations in conflict resolution and it sampled Darfur in the Sudan as a case study. Relevant literature was analysed by secondary method to determine the strength and weaknesses of the United Nations Security Council. The reviewed literature gave two different conclusions on the question of whether or not genocide occurred in Darfur. Former US Secretary of State Collin Powel and the US State Department are of the opinion that genocide did occur in Darfur. Their determination however was not in line with the report put forth by the International Commission of Inquiry in Darfur. The latter suggests that only war crimes and Crimes against Humanity were committed in Darfur and, as such, they do not meet the criteria of the crime of genocide as prescribed in Article 2 of the Genocide Convention. The UN Security Council in turn adopted resolution 1593 to refer the situation to the International Criminal Court for further clarifications. The current study however argued that the United Nations has not been and continues not to be effective in conflict resolution. Detailed analysis of literature shows that divisions within Security Council members have been a major hindrance to the smooth functioning of the Organization. The veto power bestowed upon the five permanent members of the Security Council has been an obstacle. The study suggests that the veto power should be shared among the 15 members of the Security Council or cease to exist. It also recommends that reparation as a form of compensation be provided to the victims of the Darfur conflict.
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    The impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa
    (University of Fort Hare, 2013) Gwarinda, Tafara Albert
    The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa.Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively.To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom.A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis.
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    The enforcement of the right of access to adequate housing in South Africa: a lesson for Lesotho
    (University of Fort Hare, 2013) Pule, Sesinyi Edwin
    South Africa is one of the countries with a very horrifying history. However, in the dawn of democratic governance, a worldly admirable constitution was brought into picture. The 1993 and 1996 South African Constitutions entrenched an elaborate Bill of Rights with provisions empowering courts to grant “appropriate relief and to make “just and equitable” orders. Happily, the Bill of Rights included justiciable and enforceable socio-economic rights. Amongst them, there is a right of access to adequate housing, for which this work is about. South Africa is viewed as a country with developed jurisprudence in the enforcement of socio-economic rights, hence it has been used as a lesson for Lesotho. Lesotho is still drowning in deep blue seas on enforcement of socio-economic rights either because the constitution itself hinders the progress thereon or because the parliament is unwilling to commit execute to the obligations found in the socio-economic rights filed. This work scrutinizes many jurisdictions and legal systems with a view to draw lively examples that may be followed by Lesotho courts towards enforcing housing rights. Indian and South African jurisprudences epitomize this notion.
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    Legislating business rescue in South Africa: a critical evaluation
    (University of Fort Hare, 2014) Darko-Mamphey, Dorothy; Osode, P C
    Social, political and economic changes in post-apartheid South Africa have generated the need for a major reform of the legislative regime governing companies in order to ensure that that regime is capable of addressing the challenges faced in domestic and international circles, and to also meet the demands of globalisation. These developments include the change in culture from company liquidations to commercial renewal which caused the Department of Trade and Industry (DTI) to embark on drastic reforms of South Africa’s business rescue mechanism as part of the broader company law reform project. The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution. There are various reasons why businesses fail dismally in South Africa. Most notable among those reasons are: shortage of working capital, factors related to interest rates and the volatility of the rand, mismanagement and/fraud on the part of the management and directors, as well as the global economic meltdown in recent years. Outdated technology, inappropriate financial management policies employed by directors, lack of marketing strategies, strikes, loose information systems are additional factors contributing to corporate failures. Current worldwide trends have prompted the global move towards corporate rescue to prevent companies from becoming insolvent.