Theses and Dissertations

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A Critical Analysis of the Regulation of Unit Trusts in South Africa
(University of Fort Hare, 2004-09-30) Makukunzva, Bob
The regulation of unit trusts as an example of the regulation of all financial investments in general is a fast changing and dynamic field of law, which is constantly evolving in order to keep pace with changes in the industry it regulates. It is apparent that the entire world's capital markets are grossly affected by fraud and misconducts that pose a challenge to the regulator to implement strict and counteractive legislative measures aimed at weeding out any potential misconduct.
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
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.
The impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa
(University of Fort Hare, 2013) Gwarinda, Tafara Albert
The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa.Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively.To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom.A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis.
An assessment of the domestic framework for protecting socio-economic rights under the constitution of Zimbabwe of 2013
(University of Fort Hare, 2014) Ndhlovu, Ntandokayise
Socio-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.
Legislating business rescue in South Africa: a critical evaluation
(University of Fort Hare, 2014) Darko-Mamphey, Dorothy; Osode, P C
Social, political and economic changes in post-apartheid South Africa have generated the need for a major reform of the legislative regime governing companies in order to ensure that that regime is capable of addressing the challenges faced in domestic and international circles, and to also meet the demands of globalisation. These developments include the change in culture from company liquidations to commercial renewal which caused the Department of Trade and Industry (DTI) to embark on drastic reforms of South Africa’s business rescue mechanism as part of the broader company law reform project. The domestic and global environments have indeed changed drastically with corporate structures showing significant evolution. There are various reasons why businesses fail dismally in South Africa. Most notable among those reasons are: shortage of working capital, factors related to interest rates and the volatility of the rand, mismanagement and/fraud on the part of the management and directors, as well as the global economic meltdown in recent years. Outdated technology, inappropriate financial management policies employed by directors, lack of marketing strategies, strikes, loose information systems are additional factors contributing to corporate failures. Current worldwide trends have prompted the global move towards corporate rescue to prevent companies from becoming insolvent.
The enforcement of the right of access to adequate housing in South Africa: a lesson for Lesotho
(University of Fort Hare, 2013) Pule, Sesinyi Edwin
South Africa is one of the countries with a very horrifying history. However, in the dawn of democratic governance, a worldly admirable constitution was brought into picture. The 1993 and 1996 South African Constitutions entrenched an elaborate Bill of Rights with provisions empowering courts to grant “appropriate relief and to make “just and equitable” orders. Happily, the Bill of Rights included justiciable and enforceable socio-economic rights. Amongst them, there is a right of access to adequate housing, for which this work is about. South Africa is viewed as a country with developed jurisprudence in the enforcement of socio-economic rights, hence it has been used as a lesson for Lesotho. Lesotho is still drowning in deep blue seas on enforcement of socio-economic rights either because the constitution itself hinders the progress thereon or because the parliament is unwilling to commit execute to the obligations found in the socio-economic rights filed. This work scrutinizes many jurisdictions and legal systems with a view to draw lively examples that may be followed by Lesotho courts towards enforcing housing rights. Indian and South African jurisprudences epitomize this notion.
Modern slavery and worst forms of child labour in South Africa: case of the former homeland areas
(University of Fort Hare, 2014) Obi, Ajuruchukwu
Despite a progressive constitution lauded as one of the best and most forward-looking in the world, with an advanced Bill of Rights, instances of human rights violations have been detected at all levels of the South African society. The most disturbing revelations have been associated with situations in many farming communities in South Africa. On the basis of a comprehensive nationwide study initiated in June 2001 and documented in 2003, the South African Human Rights Commission (SAHRC) confirmed widespread human rights violations on South African farms. Through the efforts of the South African Human Rights Commission, many of these violations have been brought to the attention of the authorities and there are already numerous actions being taken to contain and possibly eliminate them. Among these is the Child Labour Programme of Action which was adopted in 2003 by the large number of government departments that constitute the stakeholders, particularly those that have responsibility for labour, education, provincial and local government, water services, justice, policing, prosecution, and social development. However, the SAHRC study had limited coverage due to constraints of time and funding and did not pay adequate attention to the former independent homelands. In addition to this significant shortcoming, recent international experience reveals other forms of violations that may not be immediately obvious and therefore go undetected for a very long time. Among these, the International Labour Organization (ILO), together with various non-Governmental Organizations (NGOs) and other bodies have drawn attention to existence of what are termed “worst forms of child labour”. The latter involves a wide range of abuses to which under-age individuals are subjected against their will and often exposed to hazards that may leave them permanently excluded from formal educational and economic opportunities. The fact that national definitions differ complicates the situation. As a result, systematic investigation is needed to see to what extent local practices compare with international norms and standards. Similarly, the fact that the former independent homelands were not adequately covered in such an important study that aimed to inform policy on the optimal direction of the transformation process also raises serious questions that must be addressed. This mini-dissertation documents evidence based on a rapid appraisal of farm and non-farm environments in two polar regions of the province, namely the Port St John’s Municipality in the Oliver Tambo District Municipality of the former Transkei homeland and Alice in the Nkonkobe Municipality of the former Ciskei homeland. Descriptive and content analysis methodologies were employed to analyze the data obtained from interviews of employers of labour, the labourers themselves, as well as community members and “bystanders” who had opinions about the insertion of children into the labour market. Correlational analysis and logistic regression were performed to draw inferences about the determinants of child labour in the farming system. The indication is that child labour is an established phenomenon whose discussion is however quite sensitive and elicits a wide range of emotions. The role of socioeconomic factors in influencing the decision to engage child labour seems to be quite extensive. For instance, monthly income of household has important practical implications for national and global policy on the use of child labour are foreseen and form the basis for the recommendations put forward to address the associated concerns.
The process of naturalisation of refugees under international and South African law and its implications for human rights
(University of Fort Hare, 2015) Masumbe, Paul Sakwe
This study seeks to examine the naturalisation of refugees under international law with specific focus on the South African refugee system. The universalised nature of human rights and the difficulties of refugees finding new roots in host states form the basis of this study. This study takes a closer look at the South African refugee system and the path to naturalisation of refugees. It identifies policy and legal gaps in the process of naturalisation of refugees and argues that the practice as it stands today, fundamentally abuses the rights of refugees and questions South Africa’s good faith in meeting its international obligations under the 1951 Refugee Convention. It argues further that the biopolitical philosophy upon which South African citizenship is anchored is itself a hindrance to the realisation of efforts aimed at naturalising refugees and their descendants. The research methodology used in this study is non-empirical. This is so because the study is based on available data, information already available in print or on the internet. The study attempts to accomplish the above by undertaking an in-depth analysis of the history of refugees, the current position of naturalisation under international law, and identifies the inherent challenges. In the South African context, the study makes use of extensive statutory, constitutional and case law materials to justify that the current treatment of refugees in their quest for naturalisation is indefensible within the context of a human rights-based approach and the dictates of the Constitution. This study concludes by making recommendations that would help close the legal and policy gaps that obtain presently. These include amendments to the Refugees, Immigration and Citizenship Acts and strengthening policy implementation at the DHA. It is hoped that the recommendations will strengthen and evolve a human rights culture and bring refugee, immigration and citizenship laws in line with the Constitution. It will also pave the way for a more just and peaceful South Africa as she strives to meet her obligations under regional and international law.
An analysis of the concept of ‘self-determination’ in international law: the case of South Sudan
(University of Fort Hare, 2015) Zimuto, Prince Charles
This research intends to investigate the scope and applicability of the concept of ‘self-determination’ outside the context of decolonisation using South Sudan as a case study. Demands for the exercise of the right to self-determination are widespread. These are vehemently resisted by states who view the concept of ‘self-determination’ as a potential source of territorial disintegration. International instruments which provide for the right to self-determination also discourage the impairment of the territorial integrity of states in the name of self-determination. The problem faced in international law is therefore how to balance the right to self-determination with the principle of territorial integrity. The study reveals that the general understanding is that outside the context of decolonisation the right to self-determination may be exercised within the territorial boundaries of a state without compromising the territorial integrity of a state. The internal exercise of the right to self-determination entails human rights protection, participation in the political affairs of the state and autonomy arrangements. This general understanding is however problematic where a state systemically violates the rights of its people and denies them political participation in the affairs of the state. The people of South Sudan found themselves in such a situation from the time when Sudan gained independence from British colonial rule. Despite a number of negotiations with the government of Sudan, the people of South Sudan continued to be marginalised and their rights violated with impunity. They then demanded to exercise their right to self-determination externally and eventually they seceded from Sudan through the framework created by the Comprehensive Peace Agreement of 2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial self-determination approach to the understanding of post-colonial self-determination. In terms of this approach when people are denied the right to exercise their right to self-determination internally, or their rights are deliberately and systemically violated, they may exercise their right to self-determination externally and secede.
Expanding access to essential medicines through the right to health: a case study of South Africa
(University of Fort Hare, 2015) Motamakore, Shelton Tapiwa
Lack of access to essential medicines has proven to be a persisting problem which is in conflict with the goal of realising the right to health envisaged by the South African constitution and international human rights instruments. With more than twenty years of democracy, South Africa is still plaguing with a multiplicity of pandemics such as HIV and AIDS, cancer, malaria, tuberculosis, among others, leading to premature death and untold suffering of the people. According to a 2015 United Nations AIDS (UNAIDS) Gap report, South Africa is still regarded as the epicentre of HIV and other infectious diseases. The 2015 UNAIDS Gap report states that South Africa has more women than men living with HIV and AIDS. The report further indicates that the impact of this pandemic is worsened by the inaccessibility of essential medicines that are vital for life saving. This dissertation posits that the epidemiological health crisis described above can be largely eradicated through the utilisation of the right to health. The right to health, according to this dissertation, contains a legal and transformative power which can be utilised to limit the negative impact of patent laws on access to essential medicines in South Africa. This dissertation validates the long held view that World Trade Organisation (WTO) intellectual property laws have contributed to the inaccessibility of essential medicines through causing patent ever greening, patent linkages and pharmaceutical company’s monopolies. Consequently, many marginalised groups in South Africa lack access to essential medicines owing to the higher prices charged for such medicines thus violating the right to health, life and other fundamental human rights. The right to health which is the immediate right infringed when there is lack of access to essential medicines form the core theme of this dissertation. This dissertation argues that access to essential medicine is a fundamental part of the right to health protected under international and national human rights instruments. This dissertation further argue that the right to health imposes obligations which requires South African government to take reasonable legislative and other measures, within its available resources, to provide access to essential medicines. The dissertation‘s key contribution is its proposed solutions on how to ensure that patents rules in South Africa are tamed with obligations consistent with the right to health. If properly implemented, these solutions have the potential to give greater specification to the normative commitments imposed by the right to health in the patent claims scenarios.
The legal protection of foreign direct investment in the new millennium: a critical assessment with a focus on South Africa and Zimbabwe
(University of Fort Hare, 2015) Chidede, Talkmore
The increasing investment gap and reduction in foreign aid has made several developing countries to turn to foreign investment as a mechanism to circumvent their financial constraints among other things. There is substantial empirical evidence that foreign direct investment enhances economic development, employment creation, national competitiveness and diffusion of technology from foreign firms to local firms and workers of the host states. As a result, this study firstly argues that foreign investment is much needed in South Africa and Zimbabwe to improve economic growth and development, create employment and increase their competitiveness in the global market. However, these benefits do not accrue automatically but the host states need to create an enabling environment to exploit such benefits. The legal protection of foreign investment has become a fundamental issue in both international and national law. Efforts have been and are still being made in law as well as in practice to implement national investment legal regimes which are in line with international norms or standards. This study undertakes a contemporary assessment of the legal protection of foreign investment in South Africa and Zimbabwe with a view of examining their compliance with international minimum norms, standards and/or best practices. More recently, both South Africa and Zimbabwe have crafted and implemented investment laws and related policies which are perceived to be somewhat hostile towards foreign investment. To achieve this, selected investment laws and related policies in both jurisdictions are critically analysed. This study puts forward an argument and recommendations for policy makers in both South Africa and Zimbabwe for strategic refinements of investment laws and related policies such that they become flexible, friendly and certain to foreign investors while at the same time advancing their respective national policies aimed at the economic empowerment of local citizens.
How corruption negatively affects the realisation of socio economic rights in Zimbabwe with reference to the right to education and the right to food
(University of Fort Hare, 2015) Malota, Steven
This study demonstrates how corruption is perceived as being endemic not only in Zimbabwe but in the whole world. A society free from corruption supports good governance, transparency, accountability and development. Zimbabwe is ranked as the second most corrupt country in Southern Africa by Transparency International (TI). Chapter Three of the Constitution of Zimbabwe of 2013 protects socio economic rights, which enable people to access certain basic needs in order to lead a dignified life. These include the right to education, access to healthcare, food, safe and clean water, and the right to a healthy environment among others. The realisation and enjoyment of these rights has been impeded by corruption. This study demonstrates how corruption in both the public and private sphere affects the realisation of socio economic rights with particular reference to the right to education and the right to food. The research is a desktop qualitative research mainly based on a review and analysis of existing literature both primary and secondary sources. The findings do demonstrate that corruption does negatively affect the right to education and the right to food. In the light of the findings the study then proffers recommendations on how the scourge of corruption can be curbed. The recommendations help to develop an accountability model for Zimbabwe. This model will assist in the achievement of transparency and development and ultimately combat corruption in Zimbabwe.
The efficacy of the United Nations in conflict resolution: a study of the response of the security council to the Darfur conflict in the Sudan
(University of Fort Hare, 2012) Tambe, Endoh Fabrice
After the First and Second World War, violent interstate and intrastate armed conflicts have befallen the global community. These conflicts have been accompanied by gross human rights violations and absolute disrespect for international humanitarian law. They also pose major threats to international and regional peace and security. The body charged with the responsibility of maintaining international peace and security is the United Nations. This study investigates the efficacy of the United Nations in conflict resolution and it sampled Darfur in the Sudan as a case study. Relevant literature was analysed by secondary method to determine the strength and weaknesses of the United Nations Security Council. The reviewed literature gave two different conclusions on the question of whether or not genocide occurred in Darfur. Former US Secretary of State Collin Powel and the US State Department are of the opinion that genocide did occur in Darfur. Their determination however was not in line with the report put forth by the International Commission of Inquiry in Darfur. The latter suggests that only war crimes and Crimes against Humanity were committed in Darfur and, as such, they do not meet the criteria of the crime of genocide as prescribed in Article 2 of the Genocide Convention. The UN Security Council in turn adopted resolution 1593 to refer the situation to the International Criminal Court for further clarifications. The current study however argued that the United Nations has not been and continues not to be effective in conflict resolution. Detailed analysis of literature shows that divisions within Security Council members have been a major hindrance to the smooth functioning of the Organization. The veto power bestowed upon the five permanent members of the Security Council has been an obstacle. The study suggests that the veto power should be shared among the 15 members of the Security Council or cease to exist. It also recommends that reparation as a form of compensation be provided to the victims of the Darfur conflict.
The regulation of agricultural subsidies in the world trade organization framework: a developing country perspective
(University of Fort Hare, 2015) Chigavazira, Farai; Osode, P
The Agreement on Agriculture (AoA) was adopted to eliminate the illegitimate use of tradedistorting agricultural subsidies and thereby reduce and avoid the negative effects subsidies have on global agricultural trade. However, the AoA has been fashioned in a way that is enabling developed countries to continue high levels of protectionism through subsidization, whilst many developing countries are facing severe and often damaging competition from imports artificially cheapened through subsidies. The regulation of subsidies in the World Trade Organisation (WTO) has been a highly sensitive issue. This is mainly due to the fear of compromising food security especially by developed countries. Developing countries have suffered negatively from the subsidy programmes of developed countries who continue to subsidize their agricultural sector. This position of the developing countries in the global trade system which has been described as weak, has drawn criticism that the WTO as it currently operates does not protect the interests of the weak developing nations, but rather strengthens the interests of the strong developed nations. The green box provisions which are specifically designed to regulate payments that are considered trade neutral or minimally trade distorting has grossly been manipulated by developed countries at the mercy of the AoA. Developed countries continue to provide trade distorting subsidies under the guise of green box support. This is defeating the aims and objectives of the AoA. The study examines the regulation of WTO agricultural subsidies from the developing countries’ belvedere. It looks at the problems WTO member states face with trade distorting subsidies, but focuses more on the impact these have on developing states. It scrutinizes the AoA’s provisions regulating subsidies with a view to identify any loopholes or shortcomings which undermine the interests and aspirations of developing countries. This is behind the background that some of the provisions of the AoA are lenient towards the needs of developed countries at the expense of developing countries.

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