Theses and Dissertations

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State funded social assistance to refugee children: defining a constitutional standard for child refugee protection in South Africa
(University of Fort Hare, 2015-07) Muleya, Precious; Rembe, N.S.; Moyo, K.
The problem that this mini-dissertation addresses is whether or not the South African Constitution and legislation extends social assistance rights to refugee children. This study argues that a teleological and purposive interpretation of the Constitution would ensure access by refugee children to social assistance. The main objective of this study is not only to ascertain if the South African Constitution and legislation entrenches the right to social assistance to refugee children but also to assess if there is congruence between the level of protection agreed to at the international level and that implemented at the national level. The findings are meant to alert and assist the government on the policy and legislative deficit in the protection of refugee children, and therefore, enable it to offer better protection in line with its constitutional standards and international obligations.
Towards justice for self-represented accused persons in Ghana
(University of Fort Hare, 2018-05) Tufuor, Isodore Kwadwo; Namakula, C.S.
Self-representation in adversarial criminal proceedings raises concerns relating to procedural equality, fair trial and ultimately justice. The practice of self-representation is recognised as a legitimate means of accessing the court and is liberally allowed in countries adherent to the adversarial philosophy of adjudication. Generally, it operates as a liberty-right allowing accused persons to opt to represent themselves, if they so desire. Beyond this right-theory, it is also a procedural phenomenon influenced by socio-economic factors. By its operational design, the adversarial criminal trial envisages a legal contest, which fundamentally relies on legal representation and assistance to realise fully its values of procedural equality and fair trial. The governing legal framework of criminal prosecutions designed under international law and implemented in the Ghanaian domestic legal regime is chiefly premised on the assumption that the parties will be legally represented. Sparse attention is given to the suitability of the procedural and evidentiary frameworks of the adversarial criminal trial to proceedings involving self-represented accused persons. In practice, accused persons unskilled in the law are procedurally disadvantaged in adversarial proceedings, especially when compelled to navigate the complex and unfamiliar laws and procedures governing the trial, without legal assistance. This analytical research examines the concept and practice of self-representation in adversarial criminal proceedings in Ghana and assesses the legal system's disposition, to guarantee fair trial and access to justice for unrepresented accused persons. As a normative legal study, it evaluates the legal rules, principles and legal doctrines on self-representation within the framework of adversarial criminal proceedings. It also explores and develops legal prescriptions in addressing the practical procedural problems associated with trials without defence counsel. The findings of the study conclude that securing justice for self-represented accused persons in adversarial proceedings requires adapting the procedural legal framework to the values of procedural equality and trial fairness. This procedure in tum requires a number of legislative, judicial, institutional and policy interventions with the aim to safeguard the beneficial interests and rights generally enjoyed by accused persons acting with the assistance of counsel, for self-represented accused persons.
Deregistration and dissolution of companies: A critical evaluation of the law and jurisprudence
(University of Fort Hare, 2015) Matlala, David Maphuthi
There are two very closely related but otherwise distinct processes that may take place in the life of a company and that of a close corporation for that matter. The first process is known as "deregistration" while the second is "dissolution". Neither is defined in the Companies Act of 2008. However, in terms of the Companies Act of 1973 "deregistration" was defined, in relation to a company, to mean "the cancellation by the Registrar [of Companies] of the registration of the memorandum and articles of the company and, in relation to an external company, the cancellation by the Registrar of the memorandum of the external company" while the word "deregister" had a corresponding meaning. The Act did not define "dissolution". The purpose of this study is to examine the meaning and effect of both deregistration and dissolution on the existence of the company, the circumstances under which each process may be achieved, the procedure to be followed and the consequences of each process. The Companies Act of 1973 had very few grounds on which a company could be deregistered, which were in fact limited to three. The procedure to do so was fairly elaborate. This should be contrasted with the dispensation under the current Companies Act of 2008 which is elaborate on the grounds on which a company may be deregistered but is lacking on the procedure to be followed. This begs the question: If there is no procedure at all, fair or unfair, to be followed in order to deregister a company, can the end result of that process be fair? The answer is probably no, which immediately raises the question of constitutionality of the whole process. In the case of dissolution, the question of fairness and constitutionality of the process need not arise at all since in terms of the Companies Act of 2008, just as was the case under the Companies Act of 1973, dissolution takes place after the affairs of the company have been "completely wound up".
The impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa
(University of Fort Hare, 2013-04) Gwarinda, Tafara
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. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today's society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
The right to social security and social assistance with particular reference to olderpersons in the Eastern Cape Province: A case study of Nkonkobe Municipality
(University of Fort Hare, 2010-04) Lubisi, Nombulelo
The right to social security and social assistance is among the human rights recognized in the International Covenant of Economic, Social and Cultural Rights (1966) and in the Constitution of South Africa ( 1996). The right is of central importance for safeguarding the human dignity of all persons when they face circumstances that potentially deprive them of their capacity to fully enjoy their human rights. The realization of this right requires the government to adopt a number of progressive measures and marshal adequate resources to social security and pro poor programmes. The thesis examines the right to social security and social assistance with particular reference to older persons in the Nkonkobe Municipality of the Eastern Cape Province, South Africa. It addresses the question of access to resources and social service delivery, the level of protection offered by the government, and problems of implementation. In doing so, the study adopts a human rights-based approach. South Africa has adopted a number of policies and legislation in line with international norms and standards, and in conformity with the Constitution. She has put in place a social security framework that focus on improving the human condition of a number of beneficiary groups, such as old persons; children, etc. While many of the above groups have benefited, there are some who are still excluded from accessing these grants due to lack of information on the existence of the scheme; lack of the ·necessary documents such as birth certificates; and inefficiency in the Department of Social Welfare. At the same time, while the current social security system is unable to deliver because of poor implementation, poverty remains a continuing challenge despite the adoption of pro poor policies. The government should provide the poor and those who have no capacity to meet their basic needs with the necessary means to sustain their livelihoods. However, the continued reliance on social grants alone does not empower the poor to move out of the poverty trap. The thesis recommends that special measures should be adopted for older persons in addition to those agreed and already in place, more in particular in households where there is more than one elderly member. The government should also encourage and assist the elderly to engage in income generating and self sufficiency activities in order for the latter to meet the increasing burden of having to care for, and educate, grandchildren and orphans, and also support other members of the extended family.
A critical assessment of the legal framework regulating Gender-based violence in South Africa
(University of Fort Hare, 2024-09) Makhasane, Hape; Olaborede, A
The study seeks to examine the current legal framework that regulate Gender-based violence GBV in South Africa with the aim of identifying existing gaps and proposing appropriate solutions to this issue. The study will also employ a comparative analysis of the South African GBV-related legal framework to that of other jurisdictions, including India, Canada and the United States. This comparative analysis seeks to highlight areas where South African law can improve and better combat GBV. This study ultimately provides recommendations to develop South Africa’s legal framework to ensure a more comprehensive approach in addressing GBV.
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) Fabrice, Tambe Endoh; Rembe, N S
Sudan is located in the Northern part of the African continent and has a total land mass of 2.5 million square kilometres, with an estimated population of about 39.15 million people.1 Before the secession that established the South as an independent state from the North, Sudan was the largest country on the continent and hitherto was administered as a colony under the British mandate. From 1898 the United Kingdom (UK) and Egypt administered Sudan as an Anglo-Egyptian territory but North and South Sudan were administered as separate provinces of the condominium.2 In the early 1920s, the British passed the Closed District Ordinances which stipulated that passports were required for travelling between the two zones. Permits were also required to conduct business from one zone to the other, and totally separate administrations prevailed.3 However, in 1946 the British administration reversed its policy and decided to integrate North and South Sudan under one government. The South Sudanese authorities were informed at the Juba Conference of 1947 that they will be governed in the future under a common administrative authority with the north.5 From 1948, 13 delegates nominated by the British authorities represented the South in the Sudan Legislative Assembly. Many Southerners felt betrayed by the British as they were largely excluded from the new government. To them, it was a strategy by the British aimed at protecting their interest as far as colonial legacy is concerned.6 They complained that the language of the new government was Arabic and they were under represented. Of the eight hundred positions vacated by the British in 1953, only four were given to the Southerners. The political structure in the South was not as organized as that in the North and for this reason, political groupings and parties from the South were not represented at the various conferences that established the modern state of Sudan. As a result, many southerners did not consider Sudan to be a legitimate state. Although the Sudanese state was considered illegitimate by the Southerners, the Sudanese parliament unilaterally declared Sudan’s independence on 1st January 1956.8 Subsequently, the Arab-led Khartoum government reneged on promises it had made to Southerners to create a federal system. This led to a mutiny led by Southern army officers and sparked off a civil war after independence in 1956.9 Besides the issues highlighted above, the Abyei region of Sudan is rich in natural mineral resources and has been a bone of contention between the North and South. It has also affected Darfur negatively as most of the rebel groups involved in the Darfur conflict, like the Sudan Liberation Movement (SLM) and the Justice and Equity Movement (JEM), also seek for a share in the wealth of the region.10 However, before the June 2011 referendum, the UN Secretary-General, Ban Ki-moon called for the Sudan to withdraw all police officers from the Abyei region of South Sudan.11 Although the referendum resulted in the Republic of South Sudan, separating it from the North which remains the Republic of Sudan, political views expressed by the provinces in the North region have further captured more attention from the international community.12 The quest for Arab domination is common in this area and, one among the leading regions that have fallen prey to this practice is Darfur
Enlarging the place of human rights and development in international trade regulation: an evaluation of the problems and prospects of incorporating a social clause in the legal framework of the World Trade Organization
(University of Fort Hare, 2012) Warikandwa, Tapiwa Victor; Osode, Patrick
An agreement on the inclusion of a social clause in the World Trade Organization‟s (WTO) multilateral trade agreements largely depends on reassuring objecting member states that such inclusion will contribute to an improved recognition of core labour standards in trade, without altering the competitive advantage of one trading partner over another. Reassurance must be given to the effect that incorporating a social clause in the WTO legal framework would not be used as a trade restricting mechanism which might have direct, negative effects on the development of countries worldwide. Such an argument may not be won easily from a legal and economic perspective. There is an omnipresent conflict at the international level between the basic values underlying multilateral trade agreements and principles governing the protection of core labour standards. On the one hand, supporting the stance of free trade is the fundamental force of profit maximization while on the other hand, and in direct opposition to this market driven value system, are human rights-based calls for recognising core labour standards in employment matters related to trade. Increased international trade is a powerful tool for tackling poverty and social misery worldwide. It could thus be important to adopt a legal framework in the multilateral trade system to harness potential opportunities a trade-labour linkage could provide. In that case, the legal questions of whether or not there should be a tradeoff between the right to trade and compliance with core labour standards and whether a social clause in the WTO would achieve this purpose had to be addressed. However, without a compatible underpinning legal framework of universally accepted trade-labour standards, incorporating a social clause in the WTO would be a misplaced legal objective which is unachievable as it could lead to a conflict between the WTO and the International Labour Organisation (ILO) and at most could create a legal fiction whose results may not be positively measurable. Setting two international legal norms at conflict with each other is systematically studied as a conflict in which the values of the global market economy are in a supposed confrontation with those protecting core labour standards as human rights. Therefore, this study undertook a contemporary legal analysis of the possibilities and challenges of incorporating a social clause in the WTO for purposes of entrenching the protection of core labour standards. It put forward arguments and tentative proposals for a trade-labour linkage legal framework which could dispel calls for excluding a social clause in the WTO.
The enforcement of the right of access to adequate housing in South Africa: a lesson for Lesotho
(University of Fort Hare, 2014) Pule, Sesinyi Edwin; Okpaluba, Chuks
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.
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. 1 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. 2 The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution.
Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right
(University of Fort Hare, 2011) Batchelor, Bronwyn Le Ann
This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores.,National Research Foundation
Legal status and protection of animals in South Africa
(University of Fort Hare, 2012) Hartwig, Wendy; Wanda, B P; Mahler Coetzee, J D
The animal welfare legislation that is discussed in this Dissertation is just a sample of the available legislation from the chosen foreign jurisdictions and South Africa. The chosen foreign jurisdictions were chosen as a lens to gain a needed perspective on South African animal welfare legislation. The legislation chosen for discussion falls within particular categories that are discussed fully in the later chapters.i Despite the fact that the animal rights and animal welfare movements are recorded to date back as far as 500B.C, the majority of jurisdictions throughout the world still consider animals to be property that can be bought, traded, hunted and after they are killed, their remains kept as trophies or souvenirs. Within these jurisdictions (which includes South Africa and the other four chosen foreign jurisdictions – Kenya, India, Switzerland and the United States of America) there is a demonstrated lack of proper enforcement of the animal welfare/animal anti-cruelty legislation, regulations and industry rules, which is made worse by the actions of uncaring, abusive and/or ignorant people. South Africa is no better or worse to the four chosen jurisdictions in that it has similar anti-cruelty/animal welfare legislation. The lack of proper enforcement of this animal welfare legislation in South Africa should be of great concern as many studies have indicated that there is a link between animal abuse/cruelty and ‘human’ abuse. The same studies also indicate that animal abusers are at a greater risk of becoming violent criminals or of committing a violent crime. For example, the Federal Bureau of Investigation has noted that most serial killers in the USA had a history of torturing, abusing and killing animals before they moved on to torturing, abusing and/or killing humans in their adult life. Needed changes to the animal welfare legislation and how people view animals should be made in South Africa to ensure that welfare of animals is protected. For example, the Government could educate people about animal welfare in order to overcome any ignorance that may be the cause of animal pain and abuse, as well as strengthening existing animal welfare legislation. The eradication of ignorance, as well as a necessary change in the current animal welfare legislation, will help to create a real change in how people view and treat i Chapter 5 and 6. [iii] animals. People will come to realise that animals exist in their own right and that they were not created to serve or to be exploited by man.
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 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.
Critical analysis of the impact of the common law on African indigenous law of inheritance a case study of post colonial legislation in Zimbabwe
(University of Fort Hare, 2009) Gwarinda, Tafira Albert
The study looks at the main features of African indigenous law of succession and inheritance in Zimbabwe. It draws a distinction between the forms of inheritance practised between the two major ethnic groups, the Shona and the Ndebele. Whilst the research was mainly aimed at these two groups an investigation into inheritance practice by the South African Zulu and Xhosa counterparts was also made. An investigation into the impact of western influence on succession and inheritance was made taking a look at colonial legislation and case law, the general deduction being that it was a vehicle for attaching customary law to a western type law. After independence there was the issue of the impact of constitutionalism and international human rights law on succession in post colonial Zimbabwe. These were tools for change by bringing in notions of equality between men and women, issues that were highlighted in the cornerstone case of Magaya v Magaya, which was in turn discussed in the light of the Mthemu v Letsela and Bhe trilogy of cases in South Africa. In the final chapter there is a discussion of possibilities of reform and the future of customary law in Zimbabwe the highlight here being conducting proper legal research to ascertain the true purpose of custom.
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.
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 ‘gifts’ 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.
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.
Human rights implications of the compulsory HIV/AIDS testing policy: a critical appraisal of the law and practice in South Africa, Uganda and Canada
(University of Fort Hare, 2013) Chiringa, Kudakwashe E M; Rembe, Nasila Selani
HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.

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