Law

Permanent URI for this collection

https://hdl.handle.net/10530/19

Browse

Now showing 1 - 20 of 25

The 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.
Juridical 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.
The 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.
Extenuating 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.
The 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.
'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.
Admissibility 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.
Procedural 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.
An 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.
Proof 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.
Indigenous 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.
The semiotics of non-verbal communication in the attorney, client consultation process
(University of Zululand, 2011) Iyer, Desan; van den Bergh, N.J.C.
In 2010, the Law Society of South Africa, expressed concern over the number of law graduates that were lacking in essential skills and they stressed that clients in legal matters are placed at risk if new practitioners are not properly equipped to assist them.1 Many lamented the academic nature of the LLB programmes at most tertiary institutions as concentrating only on the “knowledge of the law” rather than the enhancement of important skills and abilities. The “radical dichotomy” that exists between theory and practice in the law curricula at most tertiary law schools is at the root of the problem Whilst there is no denying that the ubiquity of doctrinal development is central to legal studies, law is no longer seen as a “technique of professional practice” only. Legal Realism has highlighted the fact that law permeates all facets of life and should therefore be studied as an embodiment of knowledge that permeates the “real” world. The focus of my study is on one key area of communication that has been largely ignored thus far in the legal arena, i.e. non-verbal communication. Effective communication is a fundamental dexterity to the attorney and a lack thereof can result in the likelihood of psychological and emotional long-term difficulties. My study furnishes some insight into the challenges facing most attorneys during the consultation process. The study outlines the importance and ubiquity of the different sign systems (semiotics) that regulate human interaction. The growing body of knowledge about non-verbal communication has illustrated that it is the main sign system that parallels verbal communication in the human interactive process. The aim of this study was to establish the attorneys’ perceptions of implementing non-verbal communication into their daily lives and the legal system in South Africa. A qualitative approach (where attorneys were interviewed) broadened my understanding of the attorneys’ experiences and I was allowed to be privy to their personal interpretations and perspectives on non-verbal communication in the legal arena. By recording and documenting their experiences, valuable insight was gained into their emotional and psychological responses to their legal experiences. The analysis of their experiences yielded unique and distinct themes to emerge, which was then formulated into a theoretical experience The attorneys were unanimous in their call for training in non-verbal communication. It was anticipated that this would serve as a means of alleviating some of the challenges facing them during the consultation process. Successful implementation would require attorneys to have a positive, flexible and creative approach to using non-verbal skills in consultations with clients. The study finds that legal realism combined with a semiotics methodology offers the law student an apposite approach to researching and analysing systems of meaning within the communicative legal framework. A framework that integrates realism, semiotics and non-verbal communication contains all the ingredients needed to improve the communicative legal skills of the attorney. The amalgamation of non-verbal communication skills with traditional legal skills would go a long way in removing the deep-seated dichotomy that still exists between theory and practice in the LLB curricula.
A comparative study of South African and Nigerian legislation relating to control of gas emission
(University of Zululand, 2013) Oke-Samuel, Olugbenga; Ndaba, W.J.; Van den, N.J.C.
This research investigates the environmental legislation of South Africa and Nigeria as tools for control of gas emission within the context of the universal morality of environmental protection. The study highlights the other side of industrial activities - the devastating effect on health, community and the natural environment of the release of noxious gases from oil production activities. The gas emission situation in South Durban- South Africa and Niger Delta, Nigeria provide a common basis for the study. The study examined relevant legislation for control of gas emissions in the two countries. This involves identification and review of International and regional agreements, soft laws, constitutions and domestic legislation considered applicable to control of gas emission and air quality management in the two countries. The over reliance of the two countries on production of primary energy sources like coal and petrol chemicals and other fossils is revealed among others as major sources of gas emission in the two countries. Theoretically, there exist frameworks for emission control in the two countries. While both countries are signatories to relevant treaties and conventions on environment and emission control, there are fundamental differences in the nature and approach of the two countries to gas emission control and environmental law making in general. Environmental protection in South Africa is rooted in the universally acclaimed principle of sustainable development. The Constitution of South Africa not only provide for environmental rights but gives clear mandates to the parliament to legislate towards pollution prevention, conservation promotion and sustainable development. These principles underlie the South African emission control. On the other hand, the absence of a constitutional provision on sustainable development and right to environment in the Nigerian constitution limits emission control to the application of sector based legislation, in this case, oil industry legislations. These statutes predate the 1999 constitution of the country and therefore lack the necessary constitutional impetus regarded as essential for effective emission and environmental control. While it may be too early to assess the performance of the South African framework which together with the international components consists of post 1996 legislation, the researcher found the South Africa framework clear, direct and ascertainable. In the case of Nigeria applicable statutes are mostly not direct and there is a deliberate exclusion of the application of the provisions of the new National Environmental Standard Enforcement Agency (NESRA) ACT which established a semi- independent environmental body to emission and environmental problems in the oil industry. This development is a setback in emission control and environmental management in the country. At present, applicable oil industry statutes do not promote contemporary principles of environmental protection like sustainable development and environmental rights content. The Study found that despite available international and domestic frameworks, gas emission remains a major challenge in the two countries. Appropriate recommendations are made towards addressing the identified barricades. These include capacity building and a strong political will to drive the new regime in South Africa. In Nigeria, to make legislation a veritable tool for emission control demands urgent law review among other measures.
Protecting employees living with HIV/AIDS in the workplace: a comparative study
(University of Zululand, 2017) Gounden, Subashnee; Iyer, D.
This dissertation takes its focus from the plight of millions of South Africans living with HIV/AIDS. The disease predominantly affects adults of a working age resulting in direct impact on the workforce. Protecting the HIV/AIDS positive worker is crucial to ensuring a harmonious working environment, limiting new infections and curbing pre-existing infections. The focus of this study was to investigate the degree of protection or lack thereof extended to HIV/AIDS positive employees in the workplace. In an effort to analyse and explore the possible remedies available to HIV infected employees, it was necessary to conduct a comparative analysis between other international jurisdictions such as the United States of America and Australia. It was concerning to note that despite statutory and common law demands on employers to provide a safe working environment, there appears to be an increase in the number of HIV/AIDS occupational transmission cases worldwide. In an effort to address such challenges, specifically in South Africa, the researcher investigated the possibility of incorporating the doctrine of vicarious liability into the South African legal system more so against the backdrop of existing legislation in the form of Section 35(1) of the Compensation for Occupational Injuries and Diseases Act. Investigations pertaining to the protection of employees took place through a comprehensive analysis at pre-employment, continued employment and dismissal stages. This was achieved through thorough review of literature, legislation, case laws, journal articles, reviews and gazetted articles both nationally and internationally. A critical analysis of the existing legislation in South Africa purporting to protect HIV infected employees in the workplace suggests the need to move towards a progressive legal framework which incorporates a wider range of remedies available to the employee. The incorporation of the doctrine of vicarious liability into our legal system in future may be the solution to advancing the current legal framework and adequately addressing the plight of HIV positive employees. Its success would depend on certain factors being met, such as dual capacity being established and limitation to strict liability cases. Such a progressive framework will hold employers responsible for failure to implement safety measures in respect of occupational exposure at the workplace, and allow for aggrieved employees to choose the mode in which they wish to claim compensation, allowing for a wider range of remedies in line their democratic right to freedom of choice.
Investigation towards the prevention of cable theft from Eskom
(University of Zululand, 2017) Govender, Remone
Cable theft could be currently considered as a significant problem, globally. The Eskom statistical figures indicate that cable theft creates a massive problem for service delivery and places a vast amount of pressure on its financial resources. Cable theft is highlighted on various different platforms within Eskom’s business operating units and while efforts for increased security and protection measures are in place, these measures appear to be inadequate to prevent it. This study investigated the extent of cable theft at Eskom and examined what actions Eskom and private security personnel should undertake to prevent it. This study further determined what action steps need be taken by Eskom’s internal security management team, and those responsible for the capturing of all relevant information related to it, in order to prevent any form of cable theft. This research has made four key contributions to the subject: (i) A new Eskom security structure was proposed, (ii) a newly designed Eskom training curriculum framework was designed for all private security personnel working at Eskom facilities, (iii) proposed changes to Eskom’s CURA system were made, and (iv) proposed changes were suggested for Eskom’s internal ENECC cable theft reporting system.
The Impact of courtroom demeanour and non-verbal communication on the verdict
(University of Zululand, 2018) Naidoo, Kanagie
Over the years concern has been growing about justice being done in South Africa. Society’s faith in the justice system is not as strong as it was before and matters are being taken on appeal all too frequently. In addition to this, the professional body for legal practioners1 (The Law Society of South Africa or LSSA) is concerned that law graduates do not have all the attributes necessary for the profession. The LSSA is also concerned that the legal qualification (Bachelor of Laws or LLB) at most institutions focuses only on the “knowledge of the law” and not on the development of skills or abilities that will help graduates cope in the working world of the profession. as presented by the Council on Higher Education (CHE) at a colloquium on 11 November 2010. The law profession in South Africa has evolved to the point that it is no longer simply about the implementation of law. The Constitution2 has brought with it the requirement of due process, the right to a fair trial and the right to confront an accuser. These developments in the law call for further development in the skills of those who practice the law. Changes in the judiciary and the legal profession in general have brought with them the need for a review of how litigation and adjudication take place. This study focuses on key areas of communication in the trial process, namely demeanour and non-verbal communication. Neither of these areas have enjoyed the benefit of substantial theory building by scholars. The ability to correctly deal with evidence is a core competency for any presiding officer and legal practitioner as it impacts on the right to a fair trial. The Constitution has also emphasised the requirement that “justice must be seen to be done” and there appears to be a weakness in the system in this regard. This study focuses on evidence of demeanour and non-verbal behaviour/communication in the courtroom and how they impact on the outcome of trial. In as much as these concepts feature rather often in judgements there is a limited amount of literature to refer to for guidance on how to deal with demeanour and non-verbal behaviour during a trial. The aim of this study is to accentuate the fact that demeanour and non-verbal behaviour/communication do indeed impact on the outcome of the trial and that presiding officers, to some extent, lack adequate training and skill to effectively evaluate this type of evidence. The proper evaluation of evidence is central to a fair trial and justice. This study sets out the various approaches to: non-verbal communication within the social context of the courtroom, how the non-verbal behaviour of role players in a trial is dealt with, and how evidence of demeanour is dealt with when evaluating evidence. The gradual, but slow, growing body of knowledge in this regard illustrates what an integral part of the communication process of non-verbal communication really is. The qualitative approach adopted by this study (where presiding officers were interviewed) expanded the researcher’s understanding of how presiding officers deal with non-verbal communication/behaviour and demeanour when evaluating evidence. The responses from the in-depth interviews were mechanically recorded and this afforded the researcher the opportunity to gain insight into the perspectives of the presiding officers. The analysis of the responses led to the emergence of themes that were then formulated in a theoretical experience. When questioned about whether they had received sufficient training in how to deal with evidence of demeanour and non-verbal communication/behaviour all the participants in this study expressed a need for training in this regard. The study revealed that legal realism coupled with a functional approach to dealing with non-verbal communication and demeanour in the courtroom will improve the quality of judgements and add value to the work of presiding officers. The formulation of guidelines on how to better deal with evidence of demeanour and non-verbal communication/behaviour will take the judiciary and the legal profession closer to ensuring that “justice is seen to be done”.
Section 1 of the Civil Union Act 17 of 2006: Does the blanket ban on minors from entering into a civil union underpin “the best interests of the child” principle in terms of the Constitution of the Republic of South Africa
(University of Zululand, 2018) Calvino, Lizelle Ramaccio
The purpose of the study was to firstly determine whether the categorical ban of minors from entering into a civil union undermines the “the best interests of the child” principle, and if so, whether section 1 of the Civil Union Act unjustifiably violates the Constitution. The study furthermore evaluated the current South African marriage law system in determining whether the prohibition of minors from entering into a civil union, whilst the Marriage Act and the Recognition of Marriages Act afford minors (provided they obtain the required consent) the right to enter into a marriage, results in disparity and whether such disparity violates minors’ right to equality before the law and their right to have their dignity respected and protected. The study was conducted by applying qualitative research methodology. An interpretivist paradigm was applied whilst a descriptive and interpretive design were used to interpret and analyse the data. The data was collected in two phases. Phase one consisted of a historical and comparative analysis of primary and secondary sources. Semi-structured interviews were conducted in terms of the second phase of the data gathering proses. In conducting the interviews, ten participants were purposively selected from the offices of the family advocates in the area of Durban, Pietermaritzburg and Ntuzuma. Eight common themes emerged from the interviews. The findings, in respect of the second phase of the study, were integrated with the findings in respect of phase one. Ultimately the study concluded that as a result of section 1 of the Civil Union Act categorically excluding “the best interests of the child” principle, section 1 of the Civil Union Act is in violation of section 28(2) as well as other fundamental constitutional rights of minors. From the comparative analysis that was conducted within the first phase of the study, recommendations are made to address the indifference that results from the application of the various legislation regulating the current South African matrimonial law system.
The realisation of children’s survival rights in South Africa, Kenya and the Democratic Republic of Congo: a comparative analysis
(University of Zululand, 2018) Matadi, Mafuku Tholaine
The thesis involved a comparative analysis of compliance with international conventions dealing with the application of children’s rights in three Sub-Saharan jurisdictions, namely, South Africa, Kenya and the Democratic Republic of Congo (DRC). All the three countries selected for comparative analysis signed and ratified the Convention on the Rights of the Child (CRC). In this way they committed themselves to work towards the fulfillment of children’s rights at domestic level respectively. However, for many years realising full compliance with regard to children‘s rights still presents a challenge for each of these countries selected. The purpose of the investigation is to explore the extent to which children’s survival rights were fulfilled, and to identify ways to overcome the challenges that the three countries face. The concept of children’s survival rights in this study denotes rights to basic nutrition, basic health care services and social security. To answer the question the study relied on a qualitative evaluative approach based on desktop and library research. The researcher used primary and secondary sources. Although the investigation revealed that the three countries have domesticated children’s rights norms within their laws, certain gaps in implementation present a cause for concern. As a result the findings from the study confirm that despite the gaps highlighted herein, South Africa has made significant progress towards realising children’s rights. Kenya as well is following in the foot prints evident in the South African example provided it tightens its law enforcement and adopts relevant legislative and other measures to realize its international obligation. The country where children’s survival rights are yet to be realised is the DRC. The study recommends that the South African department of social development should expedite the implementation of child support grants to include distributing equal benefits to every child throughout all communities without discriminating for whatsoever reason. The findings relevant to the scenario in Kenya suggest that Kenya has a duty to consider embarking on a vigorous programme to train its professional service to comprehend laws, policies, regulations and guidelines to maximize service delivery. With regard to social protection in Kenya, and given the fact that forty percent of the population consists of children from poor families, the study recommends that the cash transfers purporting to benefit orphans and other vulnerable children in Kenya needs to be extended beyond orphans and vulnerable child-beneficiaries to include children throughout all communities regardless of financial or other status. Deviating from better placed child-rights centres in South Africa and Kenya, by contrast the DRC needs to design, implement, monitor and evaluate child support grant programmes primarily targeting ultra-poor families. Furthermore, the study finds that the DRC can learn a lesson from South Africa if its government is to succeed to respect, protect, promote and fulfil the rights in the Bill of Rights as envisaged in the Constitution. In view of the findings, the study produced a model guideline for effective realisation of children’s rights. This study potentially contributes to a growing body of international and regional research about children’s rights with a particular focus on children’ survival rights in South Africa, Kenya and the DRC.
Broadcast copyright and regulatory framework for free access to live football broadcasts in Kenya and South Africa
(2018-11) Oira, Hezekiel; Ndlovu, Lonias; Iyer, Desan
This study investigates the impact of broadcast copyright on access to the broadcasting of football in Kenya and South Africa. Broadcasting is the most important and popular platform over which football matches are distributed globally. Modern broadcasting and telecommunication technologies have created multimedia channels and platforms over which football events are exploited. The exploitation of these sporting events places greater reliance upon copyright and other intellectual property rights. Intellectual property rights in general and copyright in particular monopolises and individualises that which they protect. When football events are broadcast in Kenya and South Africa, they are assimilated into broadcasts which form one of the categories that are copyright protected in the two jurisdictions. At the same time when football games are recorded before transmission, they are protected as audio-visual works within the meaning of the copyright laws of South Africa and Kenya. The exclusive rights that broadcasting organisations enjoy in Kenya and South Africa create a monopoly over the broadcast football matches. Access to these events, therefore, on the part of the public becomes discretional at the whims of the broadcaster transmitting events. On the other hand, the study found out that football is a popular culture not only in Kenya and South Africa but also across the world. Football is an expression of the people‘s culture and therefore glue that binds people together. It is viewed as a cultural heritage that promotes collective consciousness of a people. It promotes national cohesion and nationhood and thus important for countries like Kenya and South Africa where ethnicity and racial divisions are so pronounced. This calls for stronger legal and policy frameworks towards greater public access to broadcast football. This necessity is also justified by the fact that media transforms football events into stories through commentaries and analysis. The football events therefore become informational assets that have greater constitutional underpinnings within the context of the right to information. The public therefore has a constitutional claim to broadcast football as sports information as well as under the relevant international instruments like the International Convention on the Right of the Child of 1989 and the International Charter on Physical Education and Sport. ix The major findings of the study are that live broadcasting of football events is copyright protected in Kenya and South. This copyright protection though is not backed up by copyright doctrines and philosophies because transmission of football events is not a creation of the mind. Additionally, the exclusive rights that broadcasters enjoy over their broadcasts are buttressed by technological protection measures employed by pay TV services which encase absolutely football events. This situation has been exacerbated by the migration of premium football events from free-to-air (FTA) channels to subscription services which further limits access to broadcast football events that are encrypted. Based on the foregoing findings, the study makes appropriate recommendations that would bring Kenya and South Africa to a level consistent with the global development. The global development is constructed from the practices and comparative analysis done vis-à-vis developed countries with strong traditions of sports and intellectual property rights.
An evaluation of political interference in the administration of service delivery in uMlalazi Local Municipality of Kwazulu-Natal, South Africa
(University of Zululand, 2019) Mngomezulu, Sengiwakhile
The study focused on the evaluation of political interference in the administration of service delivery in uMlalazi Local Municipality, Kwazulu Natal. The aim of the study was to identify the challenges and the concerns of municipal officials, ward committee members and politicians about political interference in their administrative duties and to highlight the impact it has on service delivery as well as come up with the possible solutions with regards to the issue of undue political interference in the administration of service delivery. This study started by reviewing the political interference in the administration of service delivery and Constitutional basis for service delivery. Thereafter, the candidate undertook original research on a valid sample of municipal officials, ward committee members and politicians of uMlalazi local municipality. Questionnaire were sent to a sample of 7 municipal officials, 3 ward committee members and 6 politicians of opposition parties domicile within uMlalazi local municipality. The researcher adopted qualitative methodology for the analyses upon which conclusions were drawn. The study describes the respondents concerns, challenges and possible solutions for the issue of political interference in the administration of service delivery. The main findings show that the majority of the respondents agreed that political interference lead to poor service delivery in uMlalazi local municipality.

Browse

Browsing Law by Issue Date

Results Per Page

Sort Options