Faculty of Law

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http://hdl.handle.net/20.500.11837/191

The Faculty of Law collection in DSpace at the University of Fort Hare provides access to the scholarly and research outputs of staff and students. This collection includes theses and dissertations, research articles, conference papers, and examination question papers. The Faculty is committed to advancing knowledge and practice in the field of law, justice, and governance, with a strong focus on the constitutional, legal, and socio-political contexts of South Africa and Africa as a whole. Areas of teaching and research include public and private law, human rights, customary law, commercial law, criminal justice, and legal ethics. By preserving and disseminating these resources, the collection supports teaching, learning, and research while contributing to the development of legal scholarship, critical inquiry, and the promotion of social justice and transformation within the University and society.

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Now showing 1 - 20 of 64

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
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.
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.
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.
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.
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.
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.
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.
An investigation of illegal farm evictions in the Great Kei Local Municipality
(University of Fort Hare, 2008) Sonjica, Kholekile Templeton
This research entails a case study on the investigation of illegal farm evictions in the Great Kei Local Municipality of the Eastern Cape. The study was propelled by the plight of people living and working on farms in South Africa who are always victims of illegal farm evictions. Such evictions in many an instance violate their basic human rights protected by South Africa's constitution and many other international conventions. It is hoped that the findings and recommendations of the research will have a profound impact on how illegal farm evictions in future will be handled by those championing the rights of people living and working on farms. Similarly, there is hope that this study will create an interest in others to new broader issues of human rights protection. A closer look at concepts like constructive evictions is necessary because of their traumatic nature to their victims. The study is divided into five chapters. 1. Introduction This chapter provides a background, the purpose of the study, specific objectives or research questions, hypotheses or assumptions of the study, the significance of the study, justification or rationale of the study, delimitation of the study, literature review, methodology, ethical considerations, and the limitations of the study. 2. The history of farm evictions in South Africa This chapter gives an outline of farm evictions in South Africa from both the colonial and apartheid 3. The culture of human rights in South Africa This chapter examines the institutions and instruments that influence the human rights culture in South Africa. It focuses on the legislative framework of human rights. 4. Farm evictions in the Great Kei Local Municipality of the Eastern Cape This chapter discusses farm evictions in the Great Kei Local Municipality and South Africa in general between December 2001 and December 2006. A case study of the same municipality is the nucleus of this research. 5. Conclusion The evaluation, findings, and recommendations of the study form the greater part of the chapter.
The auditor's duty of reasonable care and skill and the expectation to detect fraud
(University of Fort Hare, 2008) Kujinga, Benjamin Tanyaradzwa
Auditors perform a very important task within the context of the affairs of a company because financial reporting can only serve its purpose if stakeholders can rely on its accuracy and reliability. An auditor's duty is to opine whether an entity's financial reporting has been done according to the requirements of the law. The responsibility of reporting according to the law lies with an entity's directors. Auditors cannot issue an absolute assurance as to the lawfulness and reliability of an entity's financial reporting. However when it is subsequently discovered that the financial reporting was incorrect and that fraud has occurred auditors are often blamed and sued for enormous amounts of money for failing to detect material anomalies in the financial reports. These actions are based on the fact that auditors have a duty to exercise reasonable care and skill in the performance of their duties and through their failure to act as such, have caused financial harm to the clients or third parties. The fact that auditors are only required by law to exercise reasonable care and skill and perform an audit according to the standards of the reasonable auditor and not the most meticulous one, is often not regarded or is sometimes deliberately ignored. This clearly represents a problem in our law, namely that the presence of fraud in financial reports does not in itself suggest negligence on the part of the auditor but is apparently often perceived to do so. This research shows that the auditor's duty of reasonable care and skill does not necessarily entail the duty to detect fraud. The elements of the duty of reasonable care and skill are identified from case law, legislation and international auditing standards. In order to limit the liability of auditors in general it is important to focus also on the elements of fault (negligence), wrongfulness and causation. This research shows that negligence cannot be established merely by the presence of fraud or material misstatements in financial statements. The responsibility for fair financial reporting lies with the directors. This research gives prominence to this fact which often seems to be ignored for convenience and in order to place the blame on the auditors. This research implicitly asks the question, why are auditors being held responsible for material misstatements in a company's financial statements and not the directors? Guidelines for determining the extent of an auditor's liability in this regard are formulated in this research.
The regulation of insider trading in South Africa: a roadmap for effective, competitive and adequate regulatory statutory framework
(University of Fort Hare, 2008) 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 cure 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. The researcher has attempted to state the law as at 31 August 2007.
The role of the judiciary in protecting the right to freedom of expression in difficult political environments: a case study of Zimbabwe
(University of Fort Hare, 2008) Ndawana, Duduzile
The right to freedom of expression is with no doubt one of the most important rights in all democratic societies. The southern African sub-region is however lacking when it comes to the protection of this right. There are either highly repressive laws which result in the right being practiced but to a limited extent. In other cases the media is owned by the elite in society which results in the majority not being represented in the independent media and at the same time, the public media is often abused by the governing elite. The scene is therefore that both the public media and private media are representative of the elite. The research seeks to explore the protection of human rights, particularly the right to freedom of expression in politically volatile environments. The research focuses on Zimbabwe but comparative analysis has also been drawn with other jurisdictions moreso South Africa. It is important to note that Zimbabwe has ratified both the International Covenant on Civil Political Rights and the African Charter on Human and Peoples' rights both of which protect the right to freedom of expression. It is however not enough that states ratify international and regional instruments without domesticating the instruments at the national level. The domestication of the international and regional instruments is meant to ensure that individuals enjoy these rights. Freedom of expression is highly volatile in Zimbabwe. The legislature has been accused of taking away the right which has been granted to citizens by the Constitution through its highly repressive laws. The Access to Information and Protection of Privacy Act (AIPPA), the Public Order and Security Act (POSA), and the Official Secrets Act are some of the laws which have been put under spotlight in Zimbabwe. There is therefore a conflict between the legislature, the press and individuals in Zimbabwe. In Zimbabwe like many democratic states, there is separation of powers between the legislature, the executive, and the judiciary. The legislature is the decision making structure that enacts policies in their capacity as representatives of the people; the judiciary is the mediating body that adjudicates decisions between the organs of state as well as between those organs and individuals and the executive enforces decisions. The findings of the research are that despite the ratification of international and regional instruments dealing with the right to freedom of expression and the protection of the right to freedom of expression in the constitution, there still exist repressive laws in Zimbabwe which to a great extent limit the right to freedom of expression. These laws in light of the prevailing environment in Zimbabwe are often used to deprive citizens and journalists of information and their right to freedom of expression. The judiciary finds itself in a difficult position as the executive does not comply with its rulings. The independence of the judiciary, in light of the environment is also compromised by the threats to the judges, the appointment process and ΓÇÿgifts' given to the judges for example, farms. The research analyses the history and theories of freedom of freedom of expression in Zimbabwe, the laws regulating the right and the case law dealing with this right. Finally there is a comparison between Zimbabwe and South Africa and conclusions and recommendations are made based on the discussion in the dissertation. Among the recommendations is that civil society should be involved in educating individuals especially journalists about the right to freedom of expression. Further, the judiciary should also take a more proactive approach in the protection of the right.
Implementation of Domestic Violence Act No 116 of 1998 in South Africa: a case study of two townships in Nkonkobe Municipality District Eastern Cape Province
(University of Fort Hare, 2008) Mesatywa, Nontando Jennifer
This is an exploratory study on the implementation of the Domestic Violence Act No 116 of 1998 in South Africa. It is a case study of two townships in the Nkonkobe Municipality District, Eastern Cape Province. The study was conducted at Ntselamanzi and Upper Qhumashe townships in Nkonkobe Municipality District, Eastern Cape. Since this is a qualitative exploratory study, in-depth interviews were conducted on a sample of ten women in abusive relationships and focus group interviews were conducted on five service providers for a triangulation. A study of related literature focused on African women in battered relationships. An African women's perspective on the experiences of abuse have been explored. Gender based radical feminist views were discussed and legislations and conventions were analyzed from a human rights perspective. The implementation of the Domestic Violence Act and the role of service providers were also looked into. The findings suggest that African women experience abuse in partner relationships. They sustain grievous bodily harm, psychological, emotional and financial abuse. The patriarchy system, alcohol abuse, infidelity, traditional practices and failure to maintain children have been cited as some of the reasons. The social networks and service providers assisted these women to some extent. However, there is need for ethnic sensitive interdisciplinary training approach on African communities on the Act and a legal system that is accessible to rural women in order to curb further abuse. Various recommendations have been put forward. The study indicated a need for ethnic sensitive empowerment programs for the abused, rehabilitative programs that take into cognizance human rights violations of these women and the abusers, and effective legal remedies to prohibit women abuse.
Human rights in South African correctional centres: a case study of two correctional centres in the urban and rural areas of the Eastern Cape Province
(University of Fort Hare, 2008) Spayile, S
This research project focuses on human rights violation in South African correctional centres. The method of research comprises interviews conducted with correctional officials and inmates. It is a case study of one correctional centre in urban and in rural area of the Eastern Cape Province. The researcher hopes that this study will be a basis for further research into the violation of human rights in South African prisons. The findings of the research indicated that the main causes of human rights violation in South African prisons are overcrowding; gangsterism; and non adherence to Departmental policies by correctional officials. Recommendations have been made that: (i) Provision of adequate prison accommodation; (ii) Upgrading training and staff development.
A comparative analysis of the rights of the child with particular reference to child soldiers
(University of Fort Hare, 2008) Anwo, Joel Olasunkanmi; Rembe, N S
The recruitment, enlistment and forceful conscription of children as soldiers is a cause for grave concern all over the world and most especially in Africa, where years of factional fighting, civil wars and cross border conflicts have raged, children and youth have been pulled into violence not only as victims, but also as perpetrators. The involvement of children in war posses a severe challenge to prevailing moral and legal norms of the conduct of modern warfare. A major problem and most controversial issue, among others, is on the age at which children should be eligible to become combatants. Children, who may be viewed as a valuable resource due to their often inherent malleability, wish to avenge family member(s) killed in war, sense of immunity to danger, and or feeling of power in participating in the violence. Can the use of children as soldiers be effectively regulated in Africa? All efforts to assist child soldiers in recovering from the devastating effects of wars often unwillingly helped promote the growing number of child soldiers. This is in part because wars are now more fought internally among rebel armies and factions vying for power with the government and thus enlist children into their various armies. The study comes to a conclusion that drastic steps need to be taken to ameliorate this unfortunate situation. This formed the basis of the recommendations offered in the thesis to assist the African continent.
In search of a regime of responsibility and accountability for perpetrators of torture with reference to persons with special responsibility for protecting human rights
(University of Fort Hare, 2008) Odeku, Kolawole Olusola
orture is a serious violation of human rights and it is strictly prohibited by numerous human rights instruments. The prohibition of torture enshrines one of the most fundamental values of a democratic society. Its prohibition in a national constitution commits the country, and specifically its law enforcement officers, to performing their duties with due regard to the essential dignity of every human being. The irony is that the law enforcement officials and the security agents who are entrusted with the responsibility of maintaining law and order in the society sometimes breach the law which they have sworn to uphold. Most of the perpetrators of acts of torture are usually those in positions of state power. In addition, other persons who wield other forms of authority or influence also perpetrate torture. It is contended that both civil and criminal responsibilities of the perpetrators should be explored by bringing them to justice in order to serve as deterrence to others. Despite being stringently outlawed, torture continues to be practised in many countries in the world. The underlying assumption is that, although the prohibition of torture has become part of customary international law, the practice of torture remains widespread. Torturers and those who order or encourage torturers to ply their trade or acquiesce in their doing so, enjoy virtual impunity from prosecution within their own jurisdictions. In many cases, the majority of the torturers go unpunished because they are, most often than not, agents or officials of the state. Nowadays, there are various international human rights instruments prohibiting torture. Violations of the provisions of these instruments by states or individuals will attract necessary and appropriate sanction. The erring state or individual will be held accountable and if found liable, sanctions as contained in the instruments banning torture will be invoked accordingly. It must be stressed that condemnation of torture is universal and its prohibition forms not only part of customary international law, but has joined that narrow category of crimes so egregious as to demand universal criminal jurisdiction. There is no save haven for perpetrators because the various mechanisms and adjudicating bodies of state parties and the United Nations have competent jurisdictions to right the wrong. Furthermore, it must be stressed that there can be no justification for torture because CAT and other important international human rights instruments assume increasing importance tools which have realistic prospects for eliminating torture.
Dumping, antidumping and the future prospects for fair international trade
(University of Fort Hare, 2008) Zvidza, Tinevimbo
More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.
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.
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.
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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