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- ItemThe non-justiceable constitution : the dilemma of the disfranchised Black South African, 1910-1980(1981) Mchunu, Ernest Sipho.The constitutional history and the constitutional status quo in the Republic of South Africa have been written on, commented upon many times- But no Black man has ever committed to writing the legal impact of South Africa's laws from a Black perspective. This paper does not seek to deal exhaustively with all the racial legislation of the Republic of South Africa. Such a task would require the writing of a 500 page work to be entitled, "The Theory and Practice of Racial Discrimination in S.A.". It is also clearly out¬side the scope of this paper. What the writer has sought to do in this paper is to highlight those historical, legal, political and social forces that have shaped and spawned "Apartheid" in South Africa and to show how the Blacks have reacted to the enforcement of apartheid laws. The writer has elected to discuss just a few pieces of legislation which, it seems to the writer, best re¬flect the interaction of the forces referred to above. The legislation referred to directly affects constitu¬tional issues and it is for that reason that it is re¬ferred to. The choice of laws to be referred to has been somewhat arbitrary and coloured by the writer's perceptions but it is the firm view of the writer that the treatment of the subject has been fair in the cir¬cumstances . A brief explanatory note is called for at this stage. » 1. The terms "Black" or Bantu" or "Native" as they appear in the text refer to the people of African descent in South Africa. Although since the rise of the Black Power Movement in the Republic, the term "Black" has come to include "Coloured" or mixed race people and Indians, this is not the meaning attached to it in this treatise. The reason is obvious. The Indians and Coloureds have been treated differently and have reacted differently to racial discrimination in S.A. and it would require a paper about two or three times as long as this paper to examine their position legally. The motivation has not been to discriminate against other people of colour, but the choice has been dictated by academic requirements. 2. Many Acts of Parliament have been cited with their original titles such as "The Natives Lands Act 1913", the "Native Administration- Act, No. 38, of 1927". How- ever, the titles of many of these laws have been changed, e.g., the Native Administration Act 38 of 1927 is now called nThe Black Administration Act, No. 38 of 1927." The "Suppression of Communism Act, No. 44 of 1950" is now called "The Internal Security Act No. ,44 of 1950." The writer has decided to retain the original titles for in his view they reflect very fully the attitudes prevailing at the time of the passing of the statute and the new titles more often than not are misleading euphemisms 3. The Suppression of Communism Act, No. 44 of 1950 " which has been re—named the-Internal-Security Act, No. 44 of 1950 has not been specifically analysed in the paper. The reason for this is that it did not specifically dis¬criminate on the basis of colour but on the basis of political belief and affiliation. However, many of its provisions were later incorporated by reference to other statutes which were obviously racial, e.g.:, the "Unlawful Organisations Act of 1960". A reading knowledge of this Act will be advantageous in any attempt to assess the last-chapter of this paper.
- ItemJuridical analysis and critical evaluation of ilobolo in a changing Zulu society(1983) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Kemp, J.K.Four years ago I had the rare honour of being requested to be an umkhongi in three separate marriage negotiations. In the course of these negotiations I was particularly struck by the zeal with which ilobolo was demanded and by the disparity in the amounts demanded. Although I was no stranger to ilobolo, this set me thinking as to what is the significance of ilobolo in both the traditional and modern Zulu society. Here was sown the seeds that gave rise to the present research. It is a modest attempt at examining the position of ilobolo today in its historical perspective and in a society that 1s in transition. Although various contributions on ilobolo have been made by eminent authors, it is a contribution from one who has not only studied the institution but who is also part of the community that practices it. It is hoped that it will add another dimension to the existing literature on this eminent institution. The approach followed here is eminently jural and comparative although recourse is also had to the popular views owing to the limitations of the jural approach. To deviate a little: there are two mistaken assumptions which are often held in relation to a person who shows interest in the scientific study of customary law: one is that customary law is either dead or should be allowed to die natural death. Concern with it is regarded as merely an academic Exercise of little or no value; the other assumption is that interest in the systematic study of customary law lends inadvertent support to the government's policy of entrenching tribalism and of wanting the "Natives" to live according to "Native law". In answer to this the words of Ramolefe (AMR Ramolefe "Sesotho marriage, guardianship and the customary heir" in M Gluckman (ed) Ideas and procedures in African customary law (1969) 197) are particularly appropriate; "Customary law is now my devoted study, not because I willed it so, nor because I am one with those who bleat: 'Let the natives develop along their own lines; but because up in the Maluti Mountains, and in several pockets of lowland-dwellers custom is very much still ~ law and no amount of contempt for it by others can alter this fact". Customary law is still very much alive. Even blacks who are westernized are in varying degrees subject to customary law. The institution of ilobolo is ample evidence of this. Even if a black marries by civil rights that marriage will not in all respects produce consequences similar to those for a marriage of a white person. On all these blacks need legal advice. History has proved that a legal system of a people does not become extinguished by acculturation. Although many institutions may die and decay, others are resilient and the society can only build its legal system on them. The present Roman-Dutch law which is the common~ law of South Africa is a classic example. It is a synthesis of two legal systems: Roman law and Germanic customary law. Their synthesis was precipitated by the hard labours of the jurists of the Middle Ages, the Glossators and Post-Glossators. It is the duty of lawyers to facilitate a new legal dispensation for Southern Africa. What is more, customary law is changing. It is the duty of the lawyers to give effect in the law to these changes by giving decisions that will update customary law and by drafting legislation to modify the existing law. This obviously requires a scientific study of customary law. It was in this spirit that the present research was undertaken.
- ItemThe role of chiefs in the administration of justice in KwaZulu(1988) Dlamini, Charles Robinson Mandlenkosi; Labuschagne, J.M.T.Although justice, the indispensable attribute whereby law facilitates social stability, is difficult to define precisely, every society has a certain conception of justice based on the values of that society. The most popular idea has been that of equality of treatment which in the administration of justice involves treating like cases alike. This concept of justice is based on the Gesellschaft ideals and values. The idea of justice in traditional black society was modelled on Gemeinschaft ideas which emphasize more the peacekeeping function of law rather than due process and the creation of a general rule of precedent. Various societies have developed certain procedural safeguards and principles to ensure the doing of minimum justice by judicial tribunals. These vary from society to society as a result of sociological and political developments in each society. The chiefs' courts in KwaZulu represent the traditional judicial machinery. Although they have been influenced by western ideas and procedures, their mode of operation remains substantially unaltered. Most of the procedural guarantees evolved in the west, largely do not apply to these courts owing mainly to the nature of the society from which they developed. Chiefs generally do not act as individuals in the administration of justice, but are assisted by their councilors on whose wisdom and opinions they rely for judgment. These councilors have the liberty not only to cross-examine witnesses but also to ensure that the parties are fairly treated. restraints irregularities do occur. Despite these traditional Notwithstanding the irregularities chiefs' courts remain largely popular in Zulu society ,because they provide inexpensive, informal, flexible and expeditious access to justice. The procedural and evidentiary approaches emphasize reconciliation and finding a mutually acceptable solution to the dispute, desirable goals even in modern society. Regulations have been introduced which have modified the traditional procedural approach. It is nonetheless stipulated that the procedure should accord with the customary law of the tribe concerned. Some of these rules modify customary law and others are contrary to it. In a number of cases chiefs do not comply with these regulations. Although for some chiefs' courts and their method of operation are unacceptable as they compare unfavorably with western courts, these are in the minority in KwaZulu. Chief's courts therefore still enjoy a measure of legitimacy so that abolishing them without providing a viable substitute would be premature. Similar attempts elsewhere in Africa were unsuccessful. Small claims courts are not yet available in KwaZulu and their functions are limited.
- ItemA communications profile of a large sugar factory in Northern Natal(1988) Gasa, Nhlanhla A.; Zondi, S.J.A critical study of the communication problems at Mill F originated with the concern expressed by top management of the T-H company. These problems could be viewed against the rapid changes in the socio-political environment. The continual socio-political/ economic and technological changes result in a continual change in expectations and aspirations at certain levels of the work force. The lack of open sharing of the respective perceptions of Management and the workforce create a wide cleavage between the two groups leading to strained interpersonal and inter-group communications relationships in the workplace. The realisation of organisational goals and objectives becomes difficult to achieve in an environment characterised by diverse perceptions and attitudes. As the management/ worker relations become weaker, the union/worker relations become stronger. This situation is by no means unique in South Africa. A comparative study of the South African and Australian industrial relations systems had a remarkable thing in common - socio-political issues cannot be "divorced" from the workplace. The industrial relations systems and practices need to be understood within the framework of respective histories/ as well as economic, socio-political and legal systems of different countries. The Australian multiracial/ multilinguistic and multicultural society had one noticeable exception from its South African counterpart. The human relations climate on the shopfloor is relatively tension-free. The research findings are based on a stratified sample of 387 respondents from managerial/ supervisory and non-supervisory levels who participated in the research interviews out of a total of 526 employees. The communication structures/ processes and relationships were perceived by all levels of employees to be ineffective/ albeit for different reasons. Other non-communication related issues were raised which indicated that communication cannot be looked at in isolation. It was concluded that not only were the communication structures ineffective/ but also, the communication climate was tense due to perceived lack of trust and sincerity at various levels. Guidelines were suggested for improving communication. A holistic communication strategy which will be part of the manpower policy was developed with the management team in order for them to have 'ownership' of the document. Recommendations for future research that cover the broader human relations aspects were put forward.
- ItemExtenuating circumstances in murder(University of Zululand, 1989) Mbuli, Reuben Johnson; Dlamini, C.R.M.The concept of extenuating circumstances was introduced in South African law in 1935. If a trier of facts finds extenuating circumstances he is conferred with a discretion to impose either the death sentence or any other sentence. This concept applies only to the crime of murder. The introduction of this concept was a welcome development in our law because for the first time a discretion was conferred on a trier of facts notwithstanding the fact that an accused was neither a woman who had been convicted of murdering her newly born child- nor a person under the age of eighteen years. The purpose of this dissertation is to appraise the concept of extenuating circumstances in the light of the case law and legal literature- The traditional factors which figure more often than not in our courts are intoxication, psychopathy, belief in witchcraft, youthfulness, provocation and many others. They were critically analysed in this dissertation. The definition of extenuating circumstances excludes all factors which were not present during the commission of murder. The onus of proof is on the accused. The conclusion reached is that although the.concept was a welcome introduction in our law, its fetters have a negative effect- A judge may impose an appropriate sentence if he has a discretion to do so. Where a discretionary power to impose a sentence according to justice is out of question, there exists^ need to reform the law. A discretion to impose a sentence is not an end in itself but a means to justice and civilization. Several traditional conclusions of the courts and legal writers were criticised in this work. The purpose was to point out areas which need reform- On the whole, the concept of extenuating circumstances is regarded as a compromise between the abolition of the death sentence for murder and its retention. It is recommended that a trier of facts should have a discretion to impose the death penalty on any accused who displayed psychopathic tendencies during the commission of murder- There is no justification for depriving a youthful accused of the benefit of extenuating circumstances even if he killed out of inherent wickedness or inner vice. The danger of retaining the concept of extenuating circumstances is that it may entrench the death penalty for murder because of the three-part enquiry procedure used to establish it. The legislature may not reform the law because it may continue to believe that the concept is satisfactory. In conclusion, a plea is made that death sentences not be carried out until the legislature considers and expresses its views on the argument advanced by the abolitionists.
- ItemKwaZulu Legislative Assembly(1989) Sabela, Robert Thabo.; Joubert, P.S.This study deals with the controversy ranging about legislatures and legislative assemblies and the enormous range of possible roles of the KLA in development as well as the constitutional development of KwaZulu. This study reveals the following:- KwaZulu Legislative Assembly has been a success for the past 16 years. The central government had created an institution for articulate opposition. The KLA has made equally significant strides in its social policy, for example, its Department of Education and Culture. The collective thinking of the KLA crystallised when the assembly voted for the Buthelezi Commission. The KLA has not coasted an a gentle tide of consensus within the KLA and Inkatha. It has confronted recurrent crises both before the establishment of the KLA when certain members of the Royal Family wanted an executive king and when it was riven by dissension on issues of "policy" and "action." While there were changes of emphasis over time, the central fabric of the KLA has endured, and it has maintained its basic factual approach. The study also highlights the multi-purpose roles of chiefs in KwaZulu. The chiefs have been integrated in the new political order through tribal and regional authorities. The chief is a legislator, administrator, and party politician. This study also highlighted that, the chief is constrained by bureaucratic rules and regulations governing his office. The study further reveals that it is desirable to separate ^?he political and ceremonial aspects of public life. With a separate ceremonial head of state, the political leader has more time to devote to his political responsibilities. It further highlighted that the monarch is a more personalized and attractive symbol of national unity than the vague concepts of state. The monarch in KLA still serves and remains a symbol of national identity and focal point of national loyalty. The study indicates that dynamic and innovating leadership is concentrated in the Chief Minister. This raises the question of what would happen in KLA when the chief minister leaves the scene. The answers were found to be not clear in terms of a post Buthelezi era. The KLA has improved African moral and political consciousness but it had not been entirely successful in the mobilization of the urban African. This study also highlights that the birth pangs accompanying its establishment are reflected directly in its performance and role. It has the capacity to raise expectations both material and political, without capacity to fulfil those expectations. The KLA must still acquire a rich tradition on which to draw, in justifying both its present and future activities.
- ItemThe protection of human rights in Africa(1989) Dlamini, Charles Robinson Mandlenkosi; Mchunu, E.S.Human rights are rights which a person has or should have by virtue of his being a human being. This implies that a state should allow a certain measure of individual liberty- Although the idea of human rights has become accepted in the international community, the observance of human rights varies from place to place. On the attainment of independence most of the African states adopted constitutions enshrining bills of rights justiciable by the courts. Despite these bills of rights, many of the African states have been guilty of gross and systematic violation of human rights. This can be ascribed to social economic and political factors. These largely stem from the colonial background from which these states emerged. Colonial rule was extremely authoritarian and did not provide encouragement for the protection of human rights. This tradition was extended to the post-independence era. Although the independence constitutions provided far the protection of human rights, these constitutions were largely imposed on the independent states and consequently lacked legitimacy. The Organization of African Unity initially did not have the protection of human rights as one of its major objects largely because of the prevailing political circumstances at the time of its establishment. When member states violated human rights the OAU raised the defence of non-interference in the domestic affairs of a sovereign state. In this way African states applied double standards when it comes to the violation of human rights especially because they were critical of the racist policies of the South African government. The adoption of the Charter of Human and Peoples' Rights in 1981 by the OAU has provided a regional mechanism for the promotion of human rights in Africa. Despite its limitations this charter will contribute towards the observance of human rights in Africa. Moreover, it implies an end to the non-interference defence. The African experience provides a significant lesson for the bill-of-rights debate in South Africa.
- Item'n Analities-deskriptiewe uiteensetting en evaluasie van die KwaZulu wet op die wetboek van Zoeloereg 16 van 1985 =an analytical descriptive explanation and evaluation of the KwaZulu Act on the Code of alternate law 16, of 1985(1989) Buchner, Johannes Jacobus; Erasmus, M.G.The KwaZulu Act on the Code of Zulu Law 16 of 1985 is the continuation of a practice which commenced in 1878, with the aim of codifying Zulu law and custom. The KwaZulu Code is not a restatement of traditional Zulu law and custom. The Zulu community is exposed to influences and changes in relation to their way of life, perspectives on values and circumstances of life, and the KwaZulu Code apparently reflects the normative and other conceptions of the community in this regard. The KwaZulu Code regulates aspects of private law such as the personal status of citizens of KwaZulu, guardianship, control of family heads over family homes and inmates, conclusion, divorce and nullification of customary marriages, lobolo institution, status of wives, division of family homes into sections, affiliation of houses, and inheritance and succession. Other aspects that are statutorily regulated by the KwaZulu Code include, inter alia, public law, such as criminal law (offences against public order, authority, decency and morals, or in terms of the regulations in respect of customary marriages and cognate unions), and constitutional and administrative law (the relationship between the members of a' tribe and those persons who are traditionally in positions of authority, the powers in terms of public law of the authoritive instances, and the appointment of successors to deceased chiefs) as well as certain procedural •matters, and the practice relating to medicine men, herbalists and midwives. The structuralistic method which is applied in this dissertation indentifies each chapter of the KwaZulu Code as a separate entity with its own regulating provisions. Each section, or such sections in a chapter which can be grouped together, is subjected in chronological order to an analytic- descriptive investigation and evaluation,' and especially on the basis of the views, opinions and decisions of legal and ethnological literature and court decisions, interpreted juridically. A few sections have not been discussed by our legal writers, nor have they been subjected to judicial investigation. These too are interpreted juridically. Some of the provisions alter traditional Zulu law and custom drastically, for instance, the elevation of the status of Black women and the extension of their rights in respect of ownership, inheritance and succession. Consequently it is indicated whether existing provisions depart from or extend Zulu law and custom. In some instances it was found that contradictions exist between the Afrikaans and English texts of the KwaZulu Code. It is therefore recommended that where such contradictions or legal uncertainty exist, the relevant sections be amended appropriately. = Afri:Die Kwazulu-wet op die Wetboek van Zoeloereg 16 van 1985 is h voortsetting van Vi praktyk, wat reeds in 1878 rt aanvang geneem het, om Zoeloereg en -ge-bruik te kodifiseer. Die Kwazulu Wetboek volg nie tradisionele Zoeloereg en -gebruik slaafs na nie. Die Zoeloe-samelewing self word blootgestel aan invloede en verander-inge met betrekking tot lewenswyse, waardestelsel en lewensomstandighede, en die Kwazulu Wetboek weerspieel in die opsig klaarblyklik die normatiewe en ander opvattinge van die samelewing. Die Kwazulu Wetboek reel veral privaatregtelike aspekte soos die persoonlike status van burgers van Kwazulu, voogdyskap, beheersbevoegdhede van familiehoofde ten aansien van familiewonings en huisgenote, die tatstandkoming, egskeiding en nietigverklaring van gebruiklike huwelike en verwante verbintenisse, die lobolo-instelling, status van eggenotes, indeling van familiewonings in afdelings, affiliasie van huise en erfenis en erfopvolging. Ander aspekte wat deur die Kwazulu Wetboek statuter gereel word, behels, onder andere, die publiekreg, soos die strafreg (misdrywe wat teen die openbare orde, gesag, fatsoenlikheid en sedelikheid gerig is, of wat uit die regulasies aangaande gebruiklike huwelike en verwante verbintenisse voortspruit), en staats- en administratiefreg (die verhoudinge tussen stam-genote en persone wat in posisies van tradisionele gesag verkeer, die pu-bliekregtelike bevoegdhede van die gesagsinstansies en die aanstelling van opvolgers by die afsterwe van kapteins) sowel as sekere prosesregtelike aangeleenthede, en die praktyk met betrekking tot genees- en kruiekundiges en vroedvroue. Die strukturalistiese werkswyse wat gevolg word, identifiseer elke hoofstuk in die Kwazulu Uetboek as ft afsonderlike entiteit met sy eie reelende bepalings. Elke artikel of sodanige artikels wat bymekaar in ft besondere hoofstuk hoort en wat judisieel beregbaar is, word in kronologiese volgorde aan ft analities-deskriptiewe ondersoek en evaluasie onderwerp, en word ver-al aan die hand van die menings, opinies en beslissings van die toepaslike regs- en volkekundige literatuur en hofbeslissings, regskundig uitgele. Enkele artikels word nie deur ons regskrywers bespreek nie en was ook nog nie aan ft judisiele ondersoek onderworpe nie, en hulle word ook regskundig uitgele. Sammige van die bepalings verander tradisionele Zoeloereg en -gebruik ingrypend, soos onder andere, die verhoging van die status van swart vroue1 en die uitbreiding van hulle eiendoms-, erfenis- en opvolgingsregte. Daar word gevolglik aangedui of die huidige bepalings ft afwyking of uitbreiding van Zoeloereg en -gebruik is. In sommige gevalle is gevind dat daar teen-strydighede tussen die Afrikaanse en Engelse tekste van die Kwazulu Wetboek bestaan. In sodanige gevalle of in daardie gevalle waar regsonsekerheid bestaan, word aanbeveel dat die besondere artikels paslik gewysig word.
- ItemA historical survey of the development of political awareness among the Zulus(1989) Makume, Ntate John; Joubert, P.S.This study deals with the political development of the largest African population group in South Africa, the 'Zulus. The political development of the Zulus is assessed by the performances of individual Zulu leaders. The study thus focuses on the achievements/failures of some Zulu leaders, namely King Shaka, J L Dube, Albert Luthuli, Dr A B Xuma, A W G Champion, and Chief Mangosuthu Buthelezi. It becomes apparent from this that the Zulu leadership had very often been involved in some way or another in organizations that strove for the upliftment or "freedom" of the disadvantaged population groups in South Africa. This historical survey covers indeed a very wide period. It stretches from the pre-colonial period up to the present; the present being the era of the KwaZulu/Natal Indaba. The first individual under discussion is King Shaka, followed in subsequent chapters by the individuals referred to above. It is important at this juncture to elaborate on the relationship between individual action, history and society. History and society are made by constant and more or less purposeful individual action and that individual action, however purposeful, is in turn made by history and society. How do we, as active subjects, make a world of objects which then, as it were, become subjects making us their objects? It is the problem of individual and society, consciousness and being, action and structure. People make their own history - but only under definite circumstances and conditions: we act through a world of rules which our actions create, break and renew - we are creatures of rules, the rules are our creations: we make our own world - the world confronts us as an implacable and autonomous system of social/political facts. It is through the specific institutions of time and space that structures larger than the individual become a living reality and are reproduced; it is in the small segments of society that experiences are forged. Hence this study focuses on KwaZulu and Natal and on some individuals at a particular moment in time. The problem "structuring" however, means that a return to the local and individual cannot absolve us from a regional as well as a national and indeed an international perspective. Over recent years, historians and social scientists have agonized over their "unit study." Yet as the Dutch historian Jan Huizinga remarked, "Every historical fact opens immediately to infinity." More important than the starting point is the way in which the local and the particular are located within a wider context, and in turn enable us to refine our understanding of that wider context. Natal, the smallest of the four provinces of what became the Union of South Africa in 1910, cannot be understood outside the broader changes in Southern Africa in the nineteenth and twentieth centuries. Twentieth century South Africa is better understood only after we have contemplated King Shaka in his confrontation with White settlers.
- ItemThe politics of bargaining and negotiations in political conflicts with special reference to political settlements in Southern Africa(1993) Mathebula, Mbhekiseni Alpheus; Joubert, P.S.The 1989 general elections which brought Mr F W de Klerk to power could be referred to as the beginning of concrete action in the process of "Reform." Within a few months after this election, Mr de Klerk undertook what was referred to as "Pretoriastroika. "* What were supposed to be illegal mass demonstrations were suddenly declared legal. Long feared security prisoners were released and restrictions on banned organizations uplifted. High expectations were raised for the possibility of a negotiated settlement. In response to this new political development, the African National Congress (ANC) released its conditions for negotiations, the Harare Declaration, which stipulated the necessary steps to create a climate conducive to negotiations. The central theme in negotiations is the interplay of political forces trying to bargain from their various political positions. This is best demonstrated when the political positions are relative to the power commensurate to their bargaining strength. The process of bargaining at the negotiating table, especially in the political conflict, does not come about on moral grounds or through human will, it is brought about by circumstances created by the pull and push relationship between political elements in their struggle for dominance. It appeared that political development in South Africa had reached a stage where change was necessary to keep pace with global political developments, especially in the eastern communist countries, and in most "conflict infected" regions. Change is necessary only if it fits the occasion and is evolutionary, or reformist. Reform implies that the one in the position of power would like to reassert his position to 'ensure his continuation, i.e., lessening the pressure upon him to relinquish his position of power. A political analyst Dr Chaster Crocker pointed out that: "Organisationally, politically, and militarily the anti-racist movement (ANC) is not yet ready to topple the regime and the regime is no longer capable of curbing the growth of resistance."2 He further noted that; "Solutions often emerge when the parties are in some rough power balance in the power equation and when there is a real prospect that the level of mutual pain could increase if no solution occurs."3 In order to understand the internal political developments in South Africa, one needs to grasp the manifestation of power relations which moulded the political settlements in neighbouring States and how the political role players manifested themselves in an attempt to resolve regional conflict. Exploring the prospects for negotiations is not part of this research. However, the investigation is specifically intended to explore forces at play during negotiations or conflict resolution. It is intended to explore how political units bargain at the negotiating table; the interplay of internal and external factors to the conflict.
- ItemAdmissibility of confessions in criminal trials(1993) Mbuli, Reuben Johnson; Dlamini, C.R.M.A confession may be defined as an out-of-court statement by a suspect in which he or she voluntarily, knowingly and intelligently acknowledges that he or she committed or participated in the commission of a crime and which makes it clear that there is no defence in law that would make his or her conduct lawful. This is what the appeal court meant in the Becker case when it held that a confession must be defined as an unequivocal admission of guilt by an accused person. There is a need that the stringent requirements for the admissibility of confessions should also govern the admissibility of admissions and exculpatory statements. Confessions and admissions remain proper elements in law enforcement and it has been shown in some reported decisions that some criminal cases are capable of solution only by means of confessions and/or admissions. There are three phases that are important in determining whether a confession is admissible in evidence. The first phase is when a suspect is interrogated by the police. This is a phase of our predominantly accusatorial system of criminal procedure. There is a need to protect a suspect against untoward conduct by the police during his interrogation. Our new constitution has incorporated a Bill of Rights, and our common law also protects most of the interests which • are protected by the Bill of Rights (e.g. a suspect is presumed innocent until proved guilty, the privilege against self-incrimination forms part of our law and the right to legal representation is recognized). The second phase is when a confession is recorded either by a magistrate or a justice of the peace. This is a crucial stage because the "YES" and "NO" answers of a suspect on a roneod confession form and additional questions put to him may satisfy a court of law that a confession was made freely and voluntarily be an accused in his sound and sober senses and without having been unduly influenced thereto. This procedure is unique to our law. The third phase is when the admissibility of a confession is challenged in court in a trial within a trial. If a suspect is undefended, he may not adequately exercise his procedural rights. But, if he or she made a confession to a magistrate, a suspect is presumed to have acted freely and voluntarily etc. and a confession is admitted in evidence on its mere production if his or her name corresponds to the name of the person who has signed the confession and if it appears on the document containing the confession that it was made freely and voluntarily and without his or her having been unduly influenced thereto. It is recommended that before an unrepresented suspect is cross-examined on the contents of his confession where he or she has made this possible, he or she should be warned. If after explaining to him or her what cross-examination means the suspect does not understand, a legal representative should be appointed to assist him or her. It is recommended that evidence of a psychologist who has been nominated by an accused should be led where the latter is charged with a serious crime; that police interrogation be reformed in such a way that no one, whether suspected of committing high treason or any other serious crime, shall be subjected to mental torture; physical torture, assault or inhuman or degrading treatment; that the warning given to a suspect prior to the recording of his confession be reformed as discussed in this thesis; that the shift of onus from the state to an accused under certain circumstances be abolished; that the list of persons who may record a confession be increased as recommended in this thesis and that fundamental fairness during the interrogation of a suspect and during the recording of his confession be adopted as a new criterium for the admissibility of confessions.
- ItemA study of obstacles to economic development of Ghana and South Africa with particular emphasis on inadequate investment capacity(University of Zululand, 1996) Karley, Noah Kofi; Katona, E.This study is about the problem of economic development of Ghana and South Africa which arises from the fact that these countries lack the needed investment capacity. As a prelude to the analysis of savings and investment patterns, attention was firstly given to the orientation to the study. Secondly, a theoretical study of economic development and under development was made with particular emphasis to the orthodox, political economy and contramordernization approaches. Thirdly, intuitive and discriminate analytical procedures were used to distinguish economic from non economic obstacles to economic development of the countries under study. The analysis of savings and investment patterns indicate that as a percentage to G.D.P. they are generally lower in Ghana than South Africa. Various reasons account for this state of affairs. Among others, it is found that poverty is rife among the people, especially in rural areas. It also emerged from the study that financial sector savings mobilization is poor. This performance is attributed to constraints such as underdeveloped financial infrastructure and lack of competition among financial institutions in Ghana. For South Africa, the unequal distribution of wealth and acts of violence and political instability continue to undermine private investment. Public sector savings for sometime has been negative. This arises from excess of government consumption over government revenues. Several important conclusions emerged from the study, viz. that both countries are characterised by high rates of population growth which imposes strain on resources needed to provide basic facilities, that poverty is rife in both countries, and poor nutrition and lack of protection from preventable diseases resulted in high morbidity and relatively low life expectancy particilarly in rural areas, that Ghana and South Africa are both rich in terms of natural resources but natural wealth being produced is not retained within the countries due to lack of funds and knowledge required to harness resources, necessitating a call for external assistance, that generally, social and economic infrastructure are restricted to urban areas in both countries and finally, that acts of violence and political instability is undermining investment prospects. This is more pronounced in South Africa than in Ghana. Among others, it is recommended that rural restructuring to provide family planning and recreation centres, health centres, social amenities and jobs be planned and established. A foundation for re-orientating the entire education system toward the promotion of creativity, science and the acquisition of more flexible basic skills be established. This must involve the private sector. In an attempt to provide enabling environment to promote investment and economic development, it is recommended that prudent fiscal and monetary policies be established and governments to undertake comprehensive review of ail legislations and administrative practices which affect commercial and industrial activities. Finally, this dissertation attempts to draw a synthesis between theory and practice and to reflect on political stability upon which popular savings and investment aspirations can be developed.
- ItemProcedural decriminalization of certain traffic offences(1996) Ratshibvumo, Nndanganeni Jonathan; Dhlodhlo, A.E.B.Traffic laws, rules and regulations are designed for the prevention of traffic collisions and congestion. The achievement of traffic safety rests on a foundation of sound traffic regulations made effective by proper enforcement Road safety in South Africa is a matter of serious concern considering the number of deaths on the road annually. A high road carnage in South Africa cannot be attributed solely to the ever increasing population of road users and vehicles, but mainly to the lack of efficient traffic law enforcement. Road behaviour of motorists is determined inter alia by the chance of apprehension for traffic offences and the chance to have traffic prosecution finalised. Traffic offences in South Africa form part of the criminal law equally with serious common law and other statutory crimes. All offences are in practice adjudicated upon by the criminal law courts according to the law of criminal procedure. With traffic prosecutions numbering in millions, the need for judicial processing of these offences expeditiously has exceeded the capacity of the present court system. For some time the enforcement of our traffic law has been lacking in efficiency. The crisis in which our traffic law enforcement finds itself is characterized by a high number of traffic prosecutions which are not finalised as a result of offenders who dp not pay fines, who do not appear in court and those who cannot be traced for summonses to be served on them. Traffic prosecutions swamp the magistrates' courts and the Department of Justice personnel have, as a result, not been able to cope with the workload. In search for a solution to these problems, the effect of existing legislation, statutory provisions, administrative instructions and guidelines regarding the current traffic law enforcement system in South Africa were studied and analysed. The previous relevant research studies on the subject were consulted. A research on the experiences of other countries in the administration of traffic laws was carried out Comments on the subject were obtained from various persons and institutions charged with the administration of traffic law in South Africa. The recent proposals by the Department of Justice to remove certain traffic offences from the criminal justice system were studied and analysed. In view of problems encountered, I directed my research towards seeking a mechanism whereby: the errant motorists would be successfully traced and be brought to book without delay, our courts would be relieved of the existing burden of traffic cases overcrowding our court calenders, sanctions equated with the conduct of a road user would be imposed, a fast, economic and efficient way of dealing with traffic offenders could be found, and the criminal stigma attached to traffic violations could be removed. There is a need for procedural decriminalization of certain traffic offences. As an attempt to solve problems encountered in traffic law enforcement, recommendations are made for the re-classification as non-criminal of certain traffic offences and the introduction of a simplified adjudication procedure. These measures are conceived to protect the constitutional rights of the driving public, improve the driver behaviour and enhance society's interest in road safety.
- ItemAn unfair trial with special reference to improper splitting of charges(University of Zululand, 1997) Luvuno, Fikile Glady; Dhlodhlo, A.E.B.In this work the candidate discusses improper splitting of charges which is a problem in our criminal courts. The candidate starts by defining improper splitting of charges and then discusses its origin and guidelines which are followed by our courts in determining whether or not a charge has been split. Reference is made to the provisions of Chapter Three of the interim Constitution of the Republic of South Africa which provides, among others, that an accused person is entitled to a fair trial. The right to a fair trial includes the right to have recourse by way of appeal or review and to legal representation. The candidate discusses these rights. Numerous reported and a few unreported cases have been discussed. In these cases courts tested the facts of the cases against the tests and guiding principles. In most of them it was found that splitting of charges was improper. In many cases judges stress that improper splitting of charges results in the duplication of punishments. In chapter four of this work the meaning and interpretation of a fair trial is discussed. In the concluding chapter some recommendations are made.
- ItemProof beyond a reasonable doubt(1998) Dlamini, Charles Robinson Mandlenkosi; Erusmus, M.G.; Milton, J.R.L.Proof beyond a reasonable doubt is the standard of proof that is applied in criminal cases. The burden of proving the guilt of the accused in this manner rests on the state, and does not shift to the accused. This is in contrast to the evidential burden which may shift to the accused to rebut a case against him or her. There have, however, been statutory exceptions where the burden shifted to the accused. But this has been changed by the Constitution. The rule has ideological and philosophical underpinnings. Criminal law is an awe-inspiring aspect of the law the enforcement of which could lead to the deprivation of the liberty of a person. Personal liberty in Western society is a cherished value so that its deprivation should result if the state has proved beyond a reasonable doubt that the accused is guilty. This is often concretised in the saying that it is better for a hundred guilty persons to go free than that one innocent person be found guilty. The rule that the state has to prove the guilt of the accused beyond a reasonable doubt originated from English law during the eighteenth century and it was aimed at protecting the individual against the abuse of state power. Although this is a long-standing rule, there has been no clear definition of this rule either in English law or South African law. The duty to prove the guilt of the accused beyond a reasonable doubt extends to every element of the offence. There are instances where this may not be the case. These are cases where judicial notice is taken of certain facts or where there is strict liability and it is therefore not necessary to prove the existence of mens rea especially in the form of intention. Although these do not completely dispense with the requirement of proving the guilt of the accused, they result in the reduction of this burden. In a number of legislative enactments, in the past the burden of proof was shifted to the accused through the use of presumptions. Not all presumptions had this effect but only those where the accused was presumed guilty because of the existence of certain facts and hadto prove his or her innocence beyond a reasonable doubt. This is called the reverse onus. The Constitutional Court decided that these were in conflict with the provisions of sections 25 and 35 of the interim and final Constitutions respectively which, inter alia, provide for the right to silence and the presumption of innocence. Consequently these have been declared invalid as being unconstitutional. In this way the Constitution has been interpreted to affirm the core democratic values of liberty, equality and human dignity. Although the standard of proof beyond a reasonable doubt has been used, it has not been clearly defined. Proof beyond a reasonable doubt can be regarded as proof which should convince a reasonable fact finder after considering all the relevant evidence that the accused is guilty of the offence with which he is charged. This proof must be based on evidence and not merely on intuition or belief otherwise it is not a standard at all.
- ItemIndigenous peoples and their rights : with special reference to their land rights and the right to self-determination in international law : a comparative study within the South African land rights context(2000) Baloyi, Vulani Joy Gwendoline; Erasmus, M.G.The problem of land rights for indigenous peoples is one closely linked to the right of self-determination. A problem which poses a barrier to such right is the meaning of the adjective "indigenous". While it is commonly used to denote that the subject is simply native to a place, its usage in referring to indigenous peoples in the context of international human rights is narrower. A definition that has been proposed, and which is generally used as a working definition for the purposes of international action, is the Martinez Cobo definition. According to this definition, indigenous peoples are also classified as minorities. Other human rights closely connected to the right to land and self-determination for indigenous peoples are group rights, the right to existence, right to non-discrimination, the right to own culture, right to preservation of the identity of a group and the right to natural resources. Land dispossession does not only have a negative impact on indigenous peoples, but on all humankind and also on the environment. Indigenous peoples also want to share in the natural resources of their land. Modern industrialisation for the purpose of economic development has also caused damage to the environment and to indigenous peoples. The impact of landlessness is a problem which needs to be addressed. The right of self-determination is an important right for indigenous peoples. The five « manifestations of such a right are discussed in Chapter 4. Self-determination has both an external and an internal aspect. The problem of defining the term 'peoples' is said to be a barrier to the exercise of the right of self-determination by indigenous peoples. Self-determination is related to aspects such as decolonisation, equality, sovereignty, statehood, cultural integrity, secession, territorial integrity and autonomy. The relationship between self-determination, (and rights and natural resources is dealt with in Chapter 5. International institutions such as the United Nations and International Labour Organisations have intervened in trying to solve the land rights and self-determination problems for indigenous peoples. A comparative study within the context of the South African Law, covers the following aspects: 1. The historical background of land rights in South Africa. 2. The racial zoning of various parts of the Republic into homelands and the division of lands into locations, tribal-bought land, privately-bought land and Trust land. 3. The provisions of the Native Land Act of 1913 and the Bantu Trust and Land Act 18 of 1936. 4. Land Reform for Black Land Rights legislation towards such reform, and the provisions of the Freedom Charter of the ANC. 5. The Redistribution of land under the doctrine of Aboriginal Title. 6. Land Reform after 1994. 7. The provisions of both the 1993 and the 1996 SA Constitution Acts. Part li of Chapter 7 deals with the exercise of the right to self-determination in South Africa. The question as to what is a 'national self is considered as compared to the international definition of the term 'peoples'. Although the land rights and self-determination problem for indigenous peoples is a global problem which needs immediate legal attention, South Africa is also moving along with the provisions of various international instruments towards land reform. In search for a solution towards these problems, the effect of existing legislation towards land reform is analysed. It is clear that 'real' land reform cannot happen overnight.
- ItemAn investigation into the activities and perceptions of the national union of mineworkers organising in the Zululand District of the Natal Region(2000) Gwala, Reginald Desmond Sibusiso; du Toit, M.K.It will be recalled that in the past two decades or so, many Black trade unions organising in this country, especially those affiliated to COSATU, did not confine their activities to issues emanating directly from the workplace, but they engaged in broad socio-political issues. In the 1980's some Black trade unions formed alliances with political organisations such as the United Democratic Front (UDF) in order to attain broad socio-political goals. Black trade unions regarded themselves as important change agents in what was perceived to be an undemocratic social order. These unions engaged in different forms of protest actions demanding issues of a broad socio-political nature such as the release of political prisoners, the unbanning of political organisations and the establishment of a democratically elected Government in South Africa. Trade union leaders argued in the past that for as long as the political organisations were banned and their leaders were in jail, they would continue to play a dominant role in the politics of this country. The impression was created then that with the unbanning of political organisations, the release of political prisoners and the establishment of a democratically elected Government, Black trade unions would focus their attention on "bread and butter" issues i.e. issues emanating directly from the workplace.
- ItemTowards an understanding of affirmative action (AA)(2001) Palmer, Elaine Patricia.; du Toit, M.K.The emergence of the newly democratised South Africa has brought about significant changes to society. Presently, the intervention strategy, AA, has become the order of the day. There exists major dissatisfaction and disillusion with the current AA processes. An understanding of the phenomenon AA would be useful in the consideration and successful implementation of future AA processes. The reasons for the study include: a lack of clarity with regard to AA issues, lack of a holistic AA strategy, and a lack of understanding management's role in the AA process. It is deemed necessary to determine the needs, feelings and problems experienced by management with an AA process. Because of their significant role to ensure the success of any AA program being implemented in an organisation, addressing these needs, feelings and problems experienced can enhance future AA processes. To establish what the needs, feelings and problems experienced by management may be, a qualitative research study was conducted. The researcher sought to understand HR managers' needs, feelings and problems they experience with AA. In-depth interviews were conducted. A number of needs, feelings and problems experienced were identified. Some of the needs, problems and feelings experienced confirm the views people hold of AA. These include lack of senior executive officers1 support, lack of development, window dressing, resistance to change, rigid organization culture, etc. New problems were also identified which are psychological in nature. These include lack of self-esteem/ self-worth, racial stereotyping, intra- and interpersonal conflict and stress. The racial stereotyping is due to negative experiences and lack of knowledge of each other's cultures. The racial stereotyping is reinforced by selffulftlling phrophecies and setting people up for failure. New issues, such as self-worth of Black managers, trust relationship, and the existing racial attitudes and perceptions may hamper the AA process. These issues are a reality that most organizations are faced with and which they are required to address in a professional manner. Recommendations are made with regards to dealing with racial stereotyping and negative attitudes and perceptions. Managing diversity and setting up cultural workshops can assist in addressing these issues. Most organizations do not have a program through which it could be made possible to communicate on matters such as values, attitudes and perceptions on a professional level amongst colleages. Although these cultural workshops create an environment that could facilitate and encourage cross-cultural socialisation, it should be done in a less than forceful! manner. There is a need to create an environment that could enhance an appreciation and respect for the different cultures in the organisation. Managing diversity also seems to be a new challenge. Managing diversity will create a working environment, in which the barriers that stopped people in the past from developing their fullest potential will have been removed. The results have recommendations on how to address the needs, feelings of, and problems experienced by HR managers and for the development of holistic AA programs, which could lead to the implimentation of successful AA processes.
- ItemWildness in Doris Lessing's African stories(University of Zululand, 2003) Louw, Pacticia Marion; Hooper, M.J.Doris Lessing's two volumes of African Stories, This Was the Old Chiefs Country and The Sun Between Their Feet, are an important part of her African writings. Perhaps not as well known as her novel, The Grass is Singing, and The Children of Violence series, the stories reflect her childhood and adolescence in a district of Rhodesia in the colonial era and they give a vivid picture of the settler society and the African terrain. Settler society, in the stories, is made up of various subgroups defined by age, culture and gender. My study analyses the way in which members of these subgroups react to wildness in the environment. Recent trends in ecological criticism have drawn attention to the significance of landscape in literature. Indeed, in Lessing's stories 'wildness', the natural environment, the 'bush', serves as far more than a mere background to human activity. Often it acts as a point of reference in terms of which different individuals define themselves and interact with others. 'Wiidness' is particularly significant in this regard as it stands as a challenge to the colonial imperative of taming and cultivating. Thus there is often a tension between those who embrace wiidness and those who reject it. Children are a particularly significant sub-group because they respond with openness and imagination to the invitation of wild spaces, and because their presence on the margins of the adult world enables them to act as silent and unnoticed observers in places where adults would have been denied access. The freshness of the children's responses to people and to nature shows up the limitations of the adult world and so provides an ironic commentary which exposes some of the forces underlying colonialism. Relationships across linguistic, cultural and racial barriers are likewise affected by wildness and defined in terms of it. The short story is a particularly flexible genre. My study demonstrates that the two collections are a significant part of Lessing's representation of colonial society because they allow her to explore the complexities of the colonial situation and the colonial process. The construction of 'wildness' in the stories is a crucial aspect of this exploration.
- ItemAn investigation of the effect of labour law concessions on stakeholders in Kenyan Garment export processing Zones(2004) Kariuki, Simon Mwangi; Smith, N.J.At the moment Kenya is experiencing high unemployment rates, over-reliance on unprocessed commodity exports, few foreign direct investment inflows and low technological capacities. The establishment of Export Processing Zones (EPZs) has been seen as a way of helping the country overcome some of these challenges. However, the incentives that have accompanied the EPZ scheme, particularly the ceding of labour legislation by the Kenya government to EPZ investors, has created EPZ employer-employee labour relations hostilities (a labour relations gap). The purpose of this study was to establish the state of employer-employee labour relations in Kenyan garment EPZs. This was done by establishing the factors that influence the perceptions of EPZ workers towards the state of their working conditions. This study further explored the effect of labour law exemptions on EPZ investors, their employees and the Export Processing Zones Authority (EPZA). It further explored the effectiveness of existing communication and dispute settlement structures in the EPZ workplace. The survey method was largely used to collect both qualitative and quantitative data. The respondents of the survey included EPZ employers, their employees and the EPZA. Three sets of questionnaires were used to collect data. One questionnaire was distributed to EPZ employers; the second to EPZ employees and the third was distributed to the EPZA. The collected data was then analyzed using the Statistical Package for the Social Sciences (SPSS) program. The study found that the factors that significantly affected Kenyan EPZ employers and their employees* attitudes towards the state of their working conditions were*, age, gender, marital status, employment status, work section, leadership position in a company, salary scale and the location of an EPZ company in a public or private zone. The study also found that employment discrimination and the state of the working relationships in Kenyan garment EPZs had big employer-employee labour relations* gaps. Besides, the working facilities in Kenyan EPZs were relatively of high quality. The EPZ employer-employee training gap was found not to be large, while the employer-employee remuneration and interpersonal relationship gaps were found to be slightly above the acceptable levels. In addition, the study also found that employee strikes and negative publicity were the main problems EPZ investors encountered for being exempted from the minimum wage act and the factories act. Unions, politicians and Non-governmental Organizations (NGOs) were the major groups/organizations that censured EPZ operators for being exempted from labour laws. The closer EPZ investors are located to each other, the more they influenced each other's employer-employee labour relations. The findings of the study also revealed that EPZ employees found unions, the EPZA and codes of conduct as ineffective employer-employee regulatory instruments, although some employers found these three regulatory instruments to be effective. Apart from the existing EPZ employer-employee regulatory structures the three groups also consulted the ministry of labour, when they found it difficult to resolve employer-employee working conditions' related problems amongst themselves in the zones. Furthermore, the findings established that the majority of employee-employer communication in the zones revolves around wages. The majority of the EPZ employees channelled their working conditions' grievances to their employers via workers committees and strikes/go slows, while the majority of employers use workers committees and open meetings to address their workers. Regarding the effectiveness of their communication channels, the majority of the sampled employees indicated that their communication channels were effective. This is a view that their employers also concurred with. Finally, the study found that the three groups (employers, their employees and the EPZA) suggested that the use of general alternative EPZ employer-employee regulatory instruments (the government, NGOs, unions and institutions of higher learning), trade instruments (preferential trade agreements and codes of conduct) and other instruments (existing laws, arbitration and unions) could ensure that EPZ working conditions improved. The majority of workers indicated that their employer-employee working relationships could be improved with a better EPZ employment structure; improvement of employer-employee communication structures. Employees also felt that educating them on their labour rights, on the roles unions play, along with more EPZA support and better remuneration structures were required as basic working conditions that would be deemed satisfactory to them. To minimize employer-employee hostilities (reduce the employer-employee labour relations gap) the study has recommended that EPZ employers, their employees and the EPZA adopt a compliance measuring instrument, to constantly evaluate their labour relations gaps, adopt a step by step dispute resolution approach/system to solve their working conditions' problems and a higher productivity code of conduct.