Theses and Dissertations
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Item Abortion legislation and the right to life: resolving the predicament and fundamental human rights values(University of Fort Hare, 2009-12) Mbayiwa, NokuthulaAbortion 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.Item The Interpretation Problems Surrounding GATT Article XXIV and their Implications for Multilateralism in the WTO System(University of Fort hare, 2009-12) Modiro-Marata,MphoThe 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.Item The Interpretation Problems Surrounding GATT Article XXIV and their Implications for Multilateralism in the WTO System(University of Fort Hare, 2009-12) Modiro-Marata, MphoItem 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,JesleneThis 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.Item Xenophobia in South Africa: A Socio-legal Analysis(University of Fort Hare, 2011-02) Sibanda, SamukeliseThe 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.Item 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, NyikaThis 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.Item Employment Equity Law and Women in the New South Africa(University of Fort Hare, 2005) Ntshingwa, QaqambaEquality 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.Item Internally Displaced Persons and the Right to . ' Adequate Housing: An Appraisal of Operation Murambatsvina in Zimbabwe(University of Fort Hare, 2008-04-22) Zivania, RodgersThis 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.Item 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, LoniasThis 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.Item Labour Dispute Resolution by Bargaining Councils and the Commission for Conciliation, Mediation and Arbitration: A Legal Analysis(University of Fort Hare, 2005) Lubisi-Nkoane, NombuleloBargaining 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.Item Internally Displaced Persons and the Right to . ' Adequate Housing: An Appraisal of Operation Murambatsvina in Zimbabwe(University of Fort Hare, 2008-04-22) Zivanai, RodgersThis 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 studiedItem 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, LoniasThis 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.Item Labour Dispute Resolution by Bargaining Councils and the Commissionfor Counciliation, Mediation and Arbitration: A Legal Analysis(University of Fort Hare, 2005) Lubisi-Nkoane, NombuleloBargaining 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.Item A Critical Analysis of the Regulation of Unit Trusts in South Africa(University of Fort Hare, 2004-09-30) Makukunzva, BobThe 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.Item 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 MandisileUnder 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 personsItem 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, HowardInsider 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.Item 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 AlbertThe 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.Item An assessment of the domestic framework for protecting socio-economic rights under the constitution of Zimbabwe of 2013(University of Fort Hare, 2014) Ndhlovu, NtandokayiseSocio-economic inequality is deep-rooted in Zimbabwe due to a number of factors chief among them being the exclusion of socio-economic rights as justiciable under the now repealed Lancaster House Constitution (LHC). A plethora of excessive bureaucratic actions in a number of instances left many stranded without the recourse to the law particularly protection by the Constitution. To correct this historic anomaly, the 2013 Constitution was enacted. Significantly, the 2013 Constitution protects both civil and political rights and socio-economic rights in the same manner as justiciable rights. This provides the highest degree of interdependence and interrelatedness of all rights in the domestic legal order. In order to ensure that socio-economic rights are effectively protected and enforced, this study identifies and discusses the framework for protecting socio-economic rights under the 2013 Constitution. Firstly, it identifies the specific rights protected under the Constitution and the obligations imposed by these rights. Secondly, the study discusses the role of the courts in the protection of socio-economic rights. The study further identifies some of the major conceptual and practical challenges that are likely to arise in the adjudication of socio-economic rights. In that regard, the study attempts to come up with solutions meant to overcome the conceptual and practical challenges that are faced in the enforcement of socio-economic rights. For example, instead of adopting a purely legal-centric approach in interpreting socio-economic rights, it is suggested that courts should adopt a multidisciplinary approach taking into account founding values, historical background, political background, international human rights law norms and comparative law. Furthermore, this study argues that strictly adopting either of the two models of review namely the reasonableness approach as adopted by South African courts or minimum core approach as expounded by the United Nations Committee on Economic Social and Cultural Rights (CESCR) will inhibit the proper enforcement of the protected rights. Instead, courts should consider adopting an integrated model that includes the two named approaches to ensure that socio-economic rights are effectively protected and realised.Item Legislating business rescue in South Africa: a critical evaluation(University of Fort Hare, 2014) Darko-Mamphey, Dorothy; Osode, P CSocial, 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.Item The enforcement of the right of access to adequate housing in South Africa: a lesson for Lesotho(University of Fort Hare, 2013) Pule, Sesinyi EdwinSouth 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.