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Bauling, Andrea. "An analysis of the evolution of the South African law on the warranty against latent defects." Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/46081.
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In this dissertation I analyse the transformation of the South African law on the warranty against latent defects. I trace the development from pre-classical Roman law through to the enactment of the Consumer Protection Act 68 of 2008 (“the CPA”). Society’s ever-changing economic requirements and moral ideals serve as the driving forces behind these continuous legal developments.
Under Roman law the rules on latent defects initially applied to the sale of slaves. In contrast, modern South African law, as per the CPA and the values of the Constitution of the Republic of South Africa, 1996, specifically aims to protect the most vulnerable members of South Africa’s unequal society. The conservative approach adopted by the judiciary when adjudicating contractual matters hinders the transformation of the law of sale. Legal rules and legal thinking which reinforce traditional distributive patterns require reconsideration if societal-wide change, as demanded by the Constitution, can be imagined and accomplished. If the economic role of the contract and its power to divide and (re)distribute wealth is viewed as important, the link between poverty and the contract, and by association the consumer agreement, cannot be ignored.
Contracts, and specifically basic consumer and credit agreements, are often concluded in order to facilitate survival in our current social reality. The law as it relates to consumer protection and the sale of defective goods is directly related to the contract’s role in wealth distribution. Where sales agreements are in question, the unequal bargaining power of the parties can impede the purchaser/consumer even further. The consumer’s right to good quality and safe goods creates uncertainty regarding whether or not the seller’s liability under the common law warranty against latent defects may be excluded in instances where the CPA and the common law apply simultaneously. This uncertainty, if addressed as being part of the national project of transformative constitutionalism, the only conclusion that can be drawn is that the exclusion of the seller’s liability is, paradoxically, detrimental to the very subject that the CPA and Constitution aim to protect, namely the purchaser.Dissertation (LLM)--University of Pretoria, 2014.
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Private Law
LLM
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Walker, Sandra. "The tax implications of the sale of a business." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1021002.
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Currently, there are two ways to structure the sale of a business. The first is the sale of the ownership of the business, and second, the sale of its assets. The structure of the sale, by way of its ownership or by way of its assets, can have varying and complex tax consequences, and should be an important consideration during negotiations between the seller and purchaser of the business. The purchaser and the seller, in order to minimise tax consequences, should carefully consider the tax payable, flowing from the sale of the business, but often fail to do so because of the complex nature of current tax legislation. My own experience, as a practising accountant and tax practitioner, has been that when faced with complex tax legislation, the seller and the purchaser of a business often choose to ignore this aspect of the sale during negotiations. Those who have attempted to establish the tax consequences of the sale of a business during negotiations have been discouraged by the lack of a practical means to assist them in doing so. Consequently, I have undertaken a conceptual analysis and interpretation of South African tax legislation, interpretations of such legislation by the Court and other related matters with a view to examining, determining and summarising the tax consequences of the sale of a business in a practical manner, and thereby provide the seller and the purchaser with a practical means to assist them in determining the optimal structure for the sale of the business.
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Fischer, Carl Frederich. "An evaluation of the constitutionality of the common law crime of criminal defamation." Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/749.
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The challenge in the law of defamation lies in finding the appropriate balance between the two competing rights of freedom of expression and an unimpaired reputation. From Roman and Roman-Dutch law into the modern era, criminal and civil defamation have been very closely linked. The elements and defences are substantially alike. There were several calls prior to 1994 for the abrogation of criminal defamation. Now that the right to an unimpaired reputation, as part of the right to human dignity, and the right to freedom of expression is constitutionally guaranteed, quo vadis the crime of criminal defamation? The Supreme Court of Appeal has recently granted a petition for leave to appeal against convictions for criminal defamation on this very point: is the offence constitutional. Due to the paucity of criminal defamation precedent, the copious civil law precedent concerning civil defamation must be analysed to determine what view the Supreme Court of Appeal will adopt. Prior to 1994 the right to an unimpaired reputation has trumped freedom of expression. Since then, the two leading decisions by the Supreme Court of Appeal and the Constitutional Court have ameliorated this situation slightly, according freedom of expression more weight. Claiming the previous common law position was incorrect, they claim the present common law position is constitutionally sound. Thus the Constitution has in essence had no effect to date upon the balancing of competing rights in the law of defamation. Both courts have erred in according the right to freedom of expression too little weight. This may be due to three judicial errors. Firstly, they have under-appreciated that the values of dignity, equality and freedom fortify and are fortified by the right to freedom of expression. Aspects of dignity such as self-actualisation, self-governance and an acceptance that humans have intrinsic worth are heavily reliant on freedom of expression, particularly political expression. Secondly, while political expression lies at the core of freedom of expression, reputation lies nearer the periphery of the right to dignity. Rights at the core ought to trump competing but peripheral rights. Thirdly, erroneous statements are inevitable in free debate. Unless they too are protected, unacceptable self-censorship occurs. The correct approach is as a matter of policy, particularly regarding political expression, to balance the competing rights with one’s thumb on the free expression side of the scales. This seems the trend of the European Court of Human Rights in recent cases In Canada, an offence punishing libel made intentionally but without knowledge of its falsity was recently ruled unconstitutional. On the other hand, another offence punishing libel made with knowledge it was false, videlicet punishing the intentional publication of defamatory lies, was ruled constitutional. Criminal defamation clearly infringes upon the right to freedom of expression. For this infringement to pass constitutional muster it must be reasonable and justifiable in an open and democratic society. It fails the limitation test due to the lack of proportionality between its objective in protecting the right to an unimpaired reputation and the harm it does to the right to expression. There are three reasons: firstly the “chilling effect” of imprisonment, over and above pecuniary damages, unacceptably stifles free debate. Secondly, it may punish even the truth, yet protect a falsehood, since the truth per se is not a defence. An undeserved reputation is thus more highly valued than the publication of that truth. Finally there is a well-developed civil remedy that adequately protects the right to reputation of aggrieved persons. In the appeal concerning the constitutionality of the common law offence of criminal defamation, the Supreme Court of Appeal ought to find it unconstitutional.
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Maqhosha, Noluthando. "An analysis of the South African common law defence of moderate and reasonable child chastisement." Thesis, University of Fort Hare, 2016. http://hdl.handle.net/10353/2556.
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The study sought to analyse the South African common law defence of moderate and reasonable child chastisement. Regarded by those with religious and cultural beliefs as a way of instilling child discipline, child chastisement has been a centre of contestation in recent years. Constitutionally, children have rights to care, dignity and protection. Thus, child chastisement infringes upon these rights. However, regardless of its intentions, child chastisement has an effect of inflicting pain onto its victims thereby infringing on their rights to human dignity, equality and protection. It can also lead to unintended consequences such as injury or death to its victims. Subjecting children to this cruel, inhuman and degrading action affects the development of children and sometimes haunts them at a later stage in life. In addition, child chastisement lacks the measure of determining whether it is moderate or severe, thereby making it prone to abuse or misuse. The study used a qualitative research paradigm, where data was collected from existing documents and analysed towards understanding child chastisement and finding sustainable ways of improving child welfare in the home or in society. The study also analysed the legal framework on child welfare and chastisement globally, regionally and locally. Instruments such as the UNCRC, ACRWC and the UDHR have a clear stance abolishing child chastisement. The study established that, despite the existence of global instruments promoting child care and protection, the common law defence of corporal punishment in the home and society remains a loophole that needs closing and enactment of laws that outlaws it completely.
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Hlophe, John Mandlakayise. "Natural justice in South Africa : a comparative survey with reference to the common law jurisdictions." Thesis, University of Cambridge, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.303062.
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Hopkins, Elana. "Grounds for review of administrative action : the interaction between the constitution, the act and the common law." Thesis, Stellenbosch : Stellenbosch University, 2000. http://hdl.handle.net/10019.1/51779.
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Thesis (LLM)--University of Stellenbosch, 2000.ENGLISH ABSTRACT: South African administrative law has undergone drastic changes since the inception of the interim Constitution, which elevated 'administrative justice' to a constitutionally entrenched fundamental right in section 24. Although the successor of this section, the 'must administrative action' clause in section 33 FC, did not enter into force on 5 February 1996 with the rest of the Constitution, it required more changes to administrative law in the form of legislation, when read together with item 23 Schedule 6 FC. The two most significant factors that brought about change were the passage of the Promotion of Administrative Justice Act 3 of 2000 in terms of section 33 FC read with item 23 Schedule 6, and the ruling of the Constitutional Court in the Pharmaceutical Manufacturers case. This study shows that in order to give effect to the requirements of the Constitution, the Promotion of Administrative Justice Act and the ruling of the Constitutional Court, administrative law must be reorganised. When this happens, section 33 FC, which gives force to the common law that informs administrative law, becomes the starting point in administrative law matters. Although the Act exists under the Constitution and parallel to the common law, Parliament foresees that the Act and the common law will in time become one system of law. It further provides for the direct application of the Constitution by those who cannot find a remedy in the Act. The study further shows that, as not all the common law constitutional principles that previously provided the common law grounds for review of administrative action have been taken up by the Constitution, the possibility exists that some of the common law grounds do not continue to be relevant to the review of administrative action. The Act, which articulates the right to 'just administrative action' as viewed by government, contains most of the common law grounds for review. It is therefore argued that, after the Act has entered into force, the continued relevance of those that have been omitted from the Act, needs to be determined before they can be used through the direct application of section 33 FC. To test for relevance, the requirements in section 33(1) Fe, 'lawfulness', reasonableness' and 'procedural fairness', are therefore interpreted in the study in order to determine which statutory grounds relate to each and which common law grounds have been omitted from the Act. The conclusion reached is that grounds available for the review of administrative action consist of the statutory grounds for review together with the omitted common law grounds that continue to be relevant to the judicial review of administrative action.
AFRIKAANSE OPSOMMING: Sedert die inwerkingtreding van die interim Grondwet, wat 'administratiewe gerigtigheid' tot 'n grondwetlike reg verhef het in artikel 24, het die Suid-Afrikaanse administratiefreg drastiese veranderinge ondergaan. Al het die reg op 'n 'regverdige administratiewe optrede' in artikel33 FG nie op 5 Februarie 1996 in werking getree saam met die res van die Grondwet nie, het die klousule nog veranderinge, in die vorm van wetgewing, vereis. Die twee belangrikste faktore wat veranderinge to gevolg gehad het, was die aanneming van die Wet op die Bevordering van Administratiewe Geregtigheid, Wet 3 van 2000, en die beslissing van die Konstitusionele Hof in die Pharmaceutical Manufacturers-saak. Hierdie studie bevind dat die administratiefreg heringedeel sal moet word om effek te gee aan die vereistes van die Grondwet, die Wet op die Bevordering van Administratiewe Geregtigheid en die beslissing van die Konstitutionele Hof. As dit plaasvind, word artikel 33 FG, wat aan die gemenereg krag verleën, die beginpunt in administratiefregtelike aangeleenthede. Al bestaan die Wet onder die Grondwet en parallel tot die gemenereg, voorsien die regering dat die Wet en die gemenereg in die toekoms een stelsel word. Daar word verder voorsiening gemaak vir die direkte toegpassing van artikel33 deur persone wat nie 'n remedie in die Wet kan vind nie. Die studie bevind verder dat, omdat al die gemeenregtelike konstitusionele beginsels wat voorheen die gronde van hersiening verskaf het nie in die Grondwet opgeneem is nie, die moontlikheid bestaan dat sekere van die gemeenregtelike gronde nie relevant bly vir die hersiening van administratiewe handelinge nie. Die Wet, wat die reg op 'n '[r]egverdige administratiewe optrede' verwoord soos dit gesien word deur die regering, bevat meeste van die gemeenregtelike gronde van hersiening. Daarom word daar geargumenteer dat die voortgesette relevantheid van die gemeenregtelike gronde van hersiening wat uitgelaat is uit die Wet eers bepaal moet word voordat hulle gebruik kan word deur die direkte toepassing van artikel 33 nadat die Wet in werking getree het. Om te toets vir relevantheid, moet die vereistes in artikel 33 FG, 'regmatigheid', 'redelikheid' en 'prosedurele billikheid' geïnterpreteer word om te bepaal watter statutêre gronde onder elk klassifiseer en watter gemmenregtelike gronde uitgelaat is uit die Wet. Die gevolgtrekking is dat die gronde van hersiening beskikbaar vir die hersiening van administratiewe handelinge bestaan uit statutêre gronde van hersiening sowel as die weggelate gemeenregtelike gronde van hersiening wat relevant bly vir die judisiële hersiening van administratiewe handelinge.
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Staude, Daylan. "The tax consequences of a contingent liability disposed of as part of the sale of a business as a going concern." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017544.
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The sale of an entity as a going concern has a number of tax consequences for both the purchaser and the seller. The tax deductibility of a contingent liability upon its transfer from the seller to the purchaser, where the selling price has been reduced by the value of the contingent liabilities transferred, remains uncertain following the decision in Ackermans Ltd v Commissioner for the South African Revenue Service. An expense is either deductible under a specific section of the Income Tax Act, 58 of 1962, or under the general expense provisions in terms of sections 11(a) and 23(g). The Act does not contain a specific section relating to contingent liabilities and therefore a contingent liability will need to be considered for deduction under these sections. The Act further disallows an expense as a deduction under section 23(e), where a reserve is created (for example a leave pay provision). This study analyses the tax deductibility of a contingent liability, where the contingent liability has been transferred from the seller to the purchaser in a sale of an entity as a going concern and the purchase price has been reduced to compensate for the transfer of the contingent liability. The deductibility of the contingent liability was first assessed in terms of the provisions of the Act (sections 11(a), 23(g) and 23(e)) and associated case law. The decision in the Ackermans case and its preceding Income Tax Case 1839 was then analysed in order to establish the principles arising from the decisions. Finally the proposals in the Draft Taxation Laws Amendment Bill, 2011, and the subsequent Discussion Document issued by the South African Revenue Service were discussed. The analysis revealed the continuing confusion surrounding the status quo, thus demonstrating the importance of legislative intervention to provide guidelines for taxpayers.
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Oosthuizen, Beverley-Claire. "Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003206.
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This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
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Mashonganyika, Tendai Julius. "International business law and legal certainty : the need for South Africa to assent to the convention of international sale of goods." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/5152.
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Magister Philosophiae - MPhilThis study seeks to provide answers on whether South Africa should ratify the Convention on Contracts for the International Sale of Goods (CISG), in the light of promoting legal certainty and International trade. In order to address the main objective, the mini-thesis will seek to answer the following questions: 1. Evaluate the current functional Legal Framework for international sale of goods in South Africa. 2. Establish and evaluate the motivations for both accession and non-accession, including an examination of possible advantages and disadvantages arising from each. 3. Determine if the adoption of the CISG by South Africa will be a solution to the current problems and uncertainties that exist under South African Law with regards to the international sale of goods?
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Batchelor, Bronwyn Le Ann. "Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right." Thesis, University of Fort Hare, 2011. http://hdl.handle.net/10353/388.
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This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores.National Research Foundation
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Kroukamp, Susan. "Possible tax treatments of the transfer of accounting provisions during he sale of a business and subsequent tax considerations /." Thesis, Stellenbosch : University of Stellenbosch, 2006. http://hdl.handle.net/10019.1/3336.
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Thesis (MAcc (Accountancy))--University of Stellenbosch, 2006.The potential buyer of a business evaluates the attractiveness of the transaction by considering the financial status of the business being sold. In determining the financial status of a business it is more important to determine the nature of the assets and liabilities recorded on the balance sheet rather than the mere existence thereof. Included in the liabilities are accounting provisions recorded in terms of the Generally Accepted Accounting Practice (GAAP) to reflect a fair representation of the financial status. Although these provisions are made for accounting purposes, they cannot necessarily be deducted under the terms of the Income Tax Act, no 58 of 1962. The tax deductibility of accounting provisions has long been a potential contention when a business is sold. The Income Tax Act has specific sections that must be applied in determining the deductibility of accounting provisions, for example, section 11(a), which is the general deduction formula; section 23(g), which prohibits expenses not laid out for the purposes of trade; and section 23(e), which does not allow a deduction when a reserve fund is created (for example a leave pay provision). In conducting this study, seven types of accounting provision generally recorded by businesses were identified: the bonus provision, leave pay provision, warranty provision, settlement discount and incentive-rebate provision, post employment provision, retrenchment cost provision and other provisions. These provisions are discussed in view of their possible income tax deductibility, and relevant case studies were identified to confirm the possible deductibility of these accounting provisions. In this study, the transfer of accounting provisions during the sale of a business is considered for the purposes of both the buyer and seller. The tax implications for the buyer and seller are then evaluated, as well as the subsequent treatment of the accounting provisions for the purposes of the buyer. Because the wording of the purchase contract is extremely important when a business is acquired, three examples of the wording of a purchase contract are discussed as well as the income tax implications thereof. The extent of the advice given by a tax practitioner will depend on the allegiance of the practitioner (either for the buyer or seller) and will determine how the contract will be concluded. In conclusion a tax practitioner would want to assist his client to obtain the most effective tax position for the transaction and therefore each purchase contract must be reviewed on its own set of facts.
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Gwarinda, T. A. "The Impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa." Thesis, University of Fort Hare, 2013. http://hdl.handle.net/10353/1421.
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The study sought to examine the development of customary law, primarily focusing on the extent to which the true African marriage has been preserved by its incorporation in, and regulation by legislation and the constitutions of Zimbabwe and South Africa. Today, colonial legislation has either been repealed or revised. However, evidence persists suggesting the inclusion of western principles within frameworks governing African marriages such as the Customary Marriages Act and the Recognition of Customary Marriages Act of post-independence Zimbabwe and South Africa respectively. To understand the true purpose of custom, the study initially investigates the classical customary law position drawing deeper insights into the main features of the African marriage. From an African perspective, the research revealed whether legislation satisfactorily dealt with aspects such as registration of customary marriages, determination of minority and capacity to marry, payment of bride wealth, grounds for divorce, proprietary consequences of marriage during and after termination of marriage by death or divorce and women’s rights to communal land tenure and immovable property among others. Apart from legislation it became imperative to determine the role of constitutionalism and human rights law in the regulation and preservation of custom. A comparative study was motivated not only because Zimbabwe and South Africa share a border but also because migration between the two countries in the past decade due to various socio-economic forces has led to inter-marriages and cultural diversity. In addition, historically, both jurisdictions have Roman-Dutch law as the basis for the formation of their legal systems. The methodology remained largely a qualitative type research based on documentary analysis. Several findings emerged among which was the fact that, women in traditional African marriages had property rights contrary to popular belief however they continue to be most disadvantaged when it comes to having real rights in ownership of communal land. The African marriage generally sought to preserve marriage more than its western counterpart, the civil marriage. Legislation was the main vehicle for attaching customary law to western principles of law thus losing its intended purpose. Other findings were that polygamy and widow inheritance are prevalent and continue to face condemnation in today’s society; constitutionalism and international human rights law do not readily find acceptance among traditionalists; bride wealth payments persist among rural and urban folk alike and continue to symbolise a marriage between respective parties and their families; and spouses omit to register customary marriages mainly because bride wealth payments adequately legitimise their unions. Initiation ceremonies persist among some ethnic groups particularly the South African Xhosa who have adhered to circumcision for boys as determining their capacity to marry. The study concludes by making recommendations that could assist in harmonising customary law and common law. These include educational initiatives; advocacy and advice giving; regulation of unregistered customary marriages; improving access to justice; eradication of child marriages; improving the status of rural women; and constitutional reform. It is hoped that these recommendations will bridge the gap between customary law and western law as we endeavour to determine the future of the African marriage in a contemporary traditional context.
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Al-Othman, Mohammed I. O. "Good faith in contract law : with particular reference to commercial transactions in England, Scotland and selected common-law jurisdictions (Australia, South Africa and USA)." Thesis, University of Aberdeen, 2005. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=217620.
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This thesis is study of the principle of good faith in contract law. In the last fifteen years enormous attempts have been made by contract lawyers, especially those in common law systems, to consider the question of good faith in contracts. But the approach that has been taken by those lawyers in dealing with this important question is unsatisfactory and incapable of producing a coherent understanding of the role of good faith in contracts. Instead of considering the essential question of good faith in contracts, especially commercial contracts, the debate has turned out into a battle between common law and civil law. This approach creates a polarized debate. This study will concentrate on the applications of good faith in arm 's length contractual relationships. This will no doubt concentrate the analysis on its operation in contracts generally, without involving other theories that may explain the courts' concern over the problems of bad faith conducts. Examining good faith as a general requirement in contracts is vitally important in order to reach a coherent understanding of its implications for contracting parties. This study will examine in depth the most important issues regarding the operation of the good faith principle in contract law. I will examine the rationality of this principle in pre-contractual negotiations. This area of contract raises difficult questions in many common law legal systems. The Introduction of the principle of good faith at the stage of negotiation under the PECL and the UNIDROIT Principles has strengthened the role of that principle at the formation of contracts. The interaction between the principle of good faith and express terms in contracts will also be examined in an attempt to identify the limits of the parties' freedom in the enforcement of contract terms. In addition to dealing with the operation of the principle of good faith throughout the life of the contract, it is also vitally important to analyse the general provisions of good faith in the PECL, CISG, UCC and the UNIDROIT Principles. Examining these general provisions of good faith will help us to understand its role in commercial contracts.
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Woker, Tanya Ann. "Regulating franchise operations in South Africa : a study of the existing legal framework with suggestions for reform." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1015719.
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This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
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Van, der Sijde Elsabe. "The role of good faith in the South African law of contract." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/27443.
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In South Africa, courts and academia frequently refer to contracts as bonae fidei agreements. Often this term is invoked without further explanation or reflection on what the meaning of this term is. Upon closer inspection it seems that the phrase “bonae fidei has largely become devoid of any meaning. This study embarks upon a critical analysis of case law leading up to the remarks of the Constitutional Court in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers Ltd 2012 (1) SA 256 (CC); 2012 (3) BCLR 219 (CC), with the aim of determining what the role of good faith in the South African law of contract is and how this concept is approached by South African courts. A brief overview of the historical origins of the concept is given and the English law is considered as a foreign jurisdiction in order to gain understanding of how the concept is dealt with elsewhere. This study does not propose to undertake an in-depth study of consumer protection legislation. The justification for this decision lies in the fact that moving beyond this scope will prove to be too wide a field of study; hindering the in-depth discussion and evaluation of the common law and moving beyond the research aims of this dissertation. A critical analysis of South African case law indicates that it is unlikely that the courts in South Africa will adopt a general defence based on good faith that would empower courts to set aside otherwise enforceable agreements. The principle of good faith now forms part of the umbrella defence of public policy: it is finally accepted that public policy is invested in equitable contractual relationships and not only in upholding the principle of pacta servanda sunt. This study shows that good faith has a more active role to play in the law of contract as there is a duty upon courts to develop the common law so as to bring it in line with constitutional norms and values. This study illustrates the importance of open-ended concepts such as good faith and ubuntu to achieve a greater degree of equity and justice between contracting parties. The conclusion is reached that public policy is informed by the reigning ideology of the day: the contract law of South Africa must reflect its adherence to upholding and promoting the values and norms underlying the Constitution. If courts step up and uphold the constitutional mandate to develop the common law to bring it in line with constitutional values and norms, there will be very little need for legislative interference.Dissertation (LLM)--University of Pretoria, 2012.
Private Law
unrestricted
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Chauke, Hasani Wilson. "The development of common law under the constitution : making sense of vicariuos liability for acts and ommissions of police officers." Thesis, University of Limpopo, 2010. http://hdl.handle.net/10386/580.
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Booysen, Juann. "A critical analysis of the financial and social obligations imposed on sectional owners in sectional title schemes, as well as their enforcement." Thesis, Stellenbosch : Stellenbosch University, 2014. http://hdl.handle.net/10019.1/86255.
Full textAbstract:
Thesis (LLD)--Stellenbosch University, 2012ENGLISH ABSTRACT: Over the years sectional ownership satisfied the psychological need of many South Africans to acquire home-ownership and it is currently estimated that there are more than 780 000 sectional title units throughout South Africa. The concept of sectional ownership consists of three elements, namely individual ownership of a section (residential or commercial); joint ownership of the common parts of the sectional title scheme and membership of the body corporate which governs the sectional title community. Sectional ownership is therefore a unique statutory institution with its own characteristics. An imperative of every sectional title scheme is to strive for financial stability, happiness and harmony in an intensified, diverse community where the objects of ownership, the individual units, are physically interdependent. The Sectional Titles Act 95 of 1986, as amended, therefore imposes numerous financial and social obligations on sectional owners. These obligations require each owner to give up a certain degree of freedom that he might otherwise enjoy in separate, privately owned property. Ultimately the success of a sectional title scheme will depend upon the necessary co-operation and support of its members for compliance with these obligations. Since non-compliance can destroy the financial stability and social harmony in a sectional title scheme, effective procedures for the enforcement of these financial and social obligations are essential. Accordingly, effective sanctions are a sine qua non for a financially viable and socially successful sectional title scheme. This thesis provides a critical analysis of the various financial and social obligations that are imposed on sectional owners, as well as the measures available for their enforcement. It will become evident that the sanctions in the South African sectional title legislation for non-compliance with these obligations are conspicuously few and far between. It is generally accepted that the Sectional Titles Act 95 of 1986 does not have sharp enough „teeth‟ to deal effectively with the non-compliance of these obligations. Consequently, the thesis will also focus on sanctions that are used in foreign jurisdictions to enforce sectional owners‟ financial and social obligations, with the aim to identify sanctions that may be adopted in the South African context to render the enforcement of these obligations more efficient and effective. In conclusion it will be recommended that the only manner in which financial stability and social harmony can be restored in a troubled sectional title scheme is to introduce legislation which allows the body corporate as a last resort to exclude a persistent offender who makes it impossible for the other sectional owners to share the sectional owners‟ community with him or her temporarily from this community.
AFRIKAANSE OPSOMMING: Met die verloop van tyd sedert die eerste deeltitelwetgewing in 1971 in Suid Afrika ingevoer is, het deeleiendom die droom van menige Suid-Afrikaners verwesenlik om eiendomsreg van „n eie woning te verkry. Huidige statistieke dui daarop dat daar meer as 780 000 deeltiteleenhede in Suid Afrika is. Drie elemente word in die begrip „deeleiendom‟ saamgevat, naamlik individuele eiendomsreg van „n deel (residensiëel of kommersiëel), mede-eindomsreg van die gemeenskaplike gedeeltes van „n skema en lidmaatskap van „n regspersoon. Deeleiendom is dus „n unieke statutêre instelling met sy eie ongewone karaktertrekke. Die belangrikste doelwit van elke deeltitelskema is om finansiële stabiliteit, geluk en harmonie in „n geϊntensifeerde, diverse gemeenskap waar individuele eiendomseenhede, fisies interafhanklik is, te bewerkstellig. Die Wet op Deeltitels 95 van 1986, soos gewysig, onderwerp deeleienaars daarom aan verskeie finansiële en sosiale verpligtinge wat meebring dat elke deeleienaar „n sekere mate van vryheid moet prys gee wat hy andersins sou geniet het as hy eienaar was van „n huis op „n private erf. Die uiteindelike sukses van „n deeltitelskema is grotendeels afhanklik van die samewerking en ondersteuning van sy lede wat betref die nakoming van hierdie verpligtinge. Omdat nie-nakoming die finansiële stabiliteit en sosiale harmonie kan versteur word doeltreffende maatreëls vereis vir die afdwinging van hierdie finansiële en sosiale verpligtinge. „n Deeltitelskema kan slegs met sukses bestuur word indien op doeltreffende sanksies gesteun kan word. Hierdie tesis fokus op „n kritiese analise van die verskeie finansiële en sosiale verpligtinge waaraan deeleienaars onderhewig is, en die maatreëls wat aangewend kan word om hierdie verpligtinge af te dwing. Daar sal aangetoon word dat die sanksies in die Suid-Afrikaanse deeltitelwetgewing vir die nie-nakoming van hierdie verpligtinge gans te min, en boonop uiters ondoeltreffend is. Daarom word algemeen aanvaar dat die „tande‟ van die Wet op Deeltitels 95 van 1986 nie skerp genoeg is om die nie-nakoming van hierdie verpligtinge doeltreffend te straf nie. Gevolglik sal die tesis ook fokus op sanksies wat in buitelandse regstelsels aangewend word om die finansiële en sosiale verpligtinge van deeleienaars af te dwing. Die oogmerk hiermee is om buitelandse sanksies te identifiseer wat met vrug in die Suid-Afrikaanse konteks aangewend kan word ten einde die nie-nakoming van hierdie verpligtinge doeltreffend hok te slaan. Ter afsluiting sal voorgestel word dat finansiële stabiliteit en sosiale harmonie in „n erg ontwrigte deeltitelskema slegs herstel kan word indien wetgewing aangeneem word wat die regspersoon toelaat om „n deeleienaar wat ondanks waarskuwings dit vir mede-deeleienaars onmoontlik maak om saam met hom of haar in dieselfde deeleiendomsgemeenskap te leef tydelik van die skema te verwyder.
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Chen, Lei. "A uniform condominium statute for China based on a comparative study of the South African Sectional Titles Act and American Uniform Common Interest Ownership Act." Thesis, Link to the online version, 2008. http://hdl.handle.net/10019.1/1311.
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Cairncross-, Chinnapyel Nancy. "Can the parties to an international sale contract on CIF Incoterms varied in the oil and gas industry achieve the objective of linking the passing of ownership in the petroleum products that are sold from England to South Africa to the passing of risk in those petroleum products by indicating such intention in their contract of sale?" Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15184.
Full textAbstract:
This dissertation aims to focus on whether the parties to an international sale contract on CIF Incoterms varied in the oil and gas industry, specifically the petroleum sector, achieve the objective of linking the passing of ownership in the petroleum products1 sold from England to South Africa, to the passing of risk in those petroleum products by indicating such intention in their contract of sale?
20
Filippi, N. F. "Deviances and the construction of a 'healthy nation' in South Africa : a study of Pollsmoor Prison and Valkenberg Psychiatric Hospital, c. 1964-1994." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:730c12b2-2e52-4290-b5f9-5a5e557f8b45.
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This thesis is a microhistorical investigation of the dynamics of control and resistance in Pollsmoor Prison and Valkenberg Psychiatric Hospital’s Maximum Security section from 1964 to 1994 in South Africa. It examines the evolution of daily life inside these institutions, both situated in the Western Cape, and the extent to which these institutions were part of the security apparatus developed by the apartheid state. The permeability of Pollsmoor and Valkenberg shed light on the connections between repression, resistance, collaboration and survival inside and outside closed institutions. The division of incarcerated populations according to race, gender, age and behaviour reflected wider logics of governance of the South African society. Similarly, the modalities of resistance and collaboration adopted by ‘political’, ‘common law’ and ‘insane’ prisoners on the inside echoed the processes of popular mobilisation on the outside. The construction of a ‘healthy nation’ through the production and control of deviances was hence far from being a smooth process. The thesis is divided into three parts, each composed of three chapters. The first part analyses the way a system of law and order, based on delineation, the bestowal of privileges and violent repression, was imposed in prisons and psychiatric hospitals’ Maximum Security sections and how this evolved according to the changing social and political imperatives of the apartheid state. The second part shifts the gaze to the level of the courts, where psychiatric and criminological discourses became increasingly entangled throughout the period. The operating modalities of the judicial system reflected the fears and expectatives of the white minority, while providing a racialised image of black populations as both dangerous and childlike. Finally, the third part analyses the links between outside and inside resistances and adaptations to the regime of apartheid. It focuses on the 1994 prison revolts as prisms to understand the processes of subjectivation and politicisation which had emerged in closed institutions during apartheid.
21
Dafel, Michael. "The constitutional rebuilding of the South African private law : a choice between judicial and legislative law-making." Thesis, University of Cambridge, 2018. https://www.repository.cam.ac.uk/handle/1810/285563.
Full textAbstract:
A tension arises whenever the South African private law fails to meet constitutional right norms. To remedy a deficiency, two law-making options are available. The first is for the judiciary to develop or change private law principles and rules in order to provide protection for the implicated constitutional norm. The second is for the judiciary to enforce an obligation upon Parliament to enact legislation to amend or replace existing private law rights and obligations so as to safeguard the norm against interference from a private individual or entity. The former is the more conventional option, but, in recent years, the law reports record an increasing reliance on the legislative duty to protect constitutional right norms in private legal relationships. The thesis investigates the extent to which the latter phenomenon - which will be described as a 'pivot towards legislative remedies' - exists, and the circumstances in which the courts pivot towards legislative remedies rather than developing private law of their own accord. The thesis finds that legislative schemes that give effect to constitutional rights are likely to contain an array of benefits that are absent from or reduced in the judicial law-making process. The judicial pivot towards legislative remedies is thus a strategy to enhance the process through which conflicting rights are resolved, as it allows for the constitutional rebuilding of private law in a way that the judiciary is unable to do on its own. Importantly, however, theories of judicial deference do not explain the pivot. On the contrary, the courts have exercised a strict level of control over the legislative law-making pathway. Through either statutory interpretation or the review of legislation, the courts require legislation to contain the essentials of the judicial law-making framework. From this perspective, the judicial law-making process produces the floor of the rebuilding project and the legislative law-making process enhances that framework.
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Carolissen, Lee-David. "An analysis of the impact of the European Union's policy of export subsidies has on South Africa's Agricultural sector." Thesis, Online access, 2007. http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_9435_1256215062.pdf.
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Sauls, Daveraj Landor. "Directors Personal Liability for Irregular, Wasteful and Fruitless Expenditure in South African (SA) State owned Companies (SOC)." University of the Western Cape, 2020. http://hdl.handle.net/11394/7705.
Full textAbstract:
Magister Legum - LLMDirectors of companies are the forerunners in overseeing and strategically managing a company.1 The Companies Act 71 of 2008 (the Companies Act) gives the board of directors the legislative obligation for a company to be managed by or under the direction of the board of directors.2 The board of directors have a central role in the decision making and operation of a company; this position also applies to the board of directors of State owned Companies (SOC). This dissertation explores methods to hold directors of SOCs personally liable for irregular, wasteful and fruitless expenditure Irregular expenditure is defined as expenditure that does not comply with the provisions of the Public Finance Management Act 1 of 1999 (PFMA), the State Tender Board Act 86 of 1968 or any legislation that provides for provincial government procedure.3 Fruitless and wasteful expenditure is defined as ‘expenditure which was made in vain and would have been avoided had reasonable care has been exercised’.This research aims to analyse legislative mechanisms put in place that hold directors of SOCs personally liable for irregular, reckless, wasteful and fruitless expenditure. Section 77(2)(b) and 218(2) of the Companies Act contains the legislative basis for the personal liability of directors of SOCs for irregular, wasteful and fruitless expenditure.
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Morgan, Kirsty Kate. "The legalisation and regulation of online gambling in South Africa." University of the Western Cape, 2017. http://hdl.handle.net/11394/6092.
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Barnard, Jacolien. "The influence of the Consumer Protection Act 68 of 2008 on the common law of sale." Thesis, 2013. http://hdl.handle.net/2263/32798.
Full textAbstract:
The purpose of this thesis is to investigate to what extent the Consumer Protection
Act 68 of 2008 (CPA) influences the common law of sale in South Africa. “Common
law of sale” refers to the essentialia of sale (the minimum characteristics that parties
must have consensus on to conclude a valid sale). The parties must have consensus
on the intention to buy and sell, the things sold and the purchase price. The common
law of sale also refers to the common law duties of the parties, the duties of the
seller in particular (conversely therefore the rights of the buyer). The primary duties
of the seller which will be investigated are: a. the duty of safe-keeping (including and investigation into the passing of benefit
and risk doctrine);
b. the duty of delivery and transfer of ownership;
c. the warranty against eviction; and
d. the warranty against latent defects.
The primary common law duties of the buyer to pay the purchase price and accept
the thing sold are included in the investigation as well. The formalities required in
certain sale agreements, that wording must be in plain language as well as the
buyer’s cooling-off rights are also investigated.
An investigation into the influence of the CPA on the common law of sale in
South Africa warrants a systematic framework and modus operandi which are:
a. an investigation into the historical background of the common law of sale and
its principles in the Roman law and Roman-Dutch law;
b. a critical analysis of the position where the CPA is not applicable (the
common law position);
c. an extensive analysis and critical evaluation of the relevant provisions of the
CPA and the influence thereof on the common law of sale;
d. a comparative analysis of the appropriate provisions in Scotland and Belgium; e. a conclusion of the influence of the CPA on the common law of sale (whether
the particular common law of sale principle is confirmed, amended or excluded in terms of the Act); and f. recommendations (taking into account the comparative analysis) regarding
the rectification of uncertainties and ambiguities that arose as a result of the
investigation.
It is also important to remember that the existing principles of the common law of
sale will still be applicable for transactions and agreements which fall outside the
application of the Act.
The golden rule to keep in mind when investigating the influence of the CPA
on the common law of sale is to determine which approach and interpretation will be
most beneficial to the consumer.Thesis (PhD)--University of Pretoria, 2013.
gm2013
Mercantile Law
Unrestricted
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Van, Jaarsveld Izelde Louise. "Aspects of money laundering in South African law." Thesis, 2011. http://hdl.handle.net/10500/5091.
Full textAbstract:
Money laundering involves activities which are aimed at concealing benefits that were acquired
through criminal means for the purpose of making them appear legitimately acquired. Money
laundering promotes criminal activities in South Africa because it allows criminals to keep the
benefits that they acquired through their criminal activities. It takes place through a variety of
schemes which include the use of banks. In this sense money laundering control is based on the
premise that banks must be protected from providing criminals with the means to launder the
benefits of their criminal activities.
The Financial Intelligence Centre Act 38 of 2001 (‘FICA’) in aggregate with the
Prevention of Organised Crime Act 121 of 1998 (‘POCA’) form the backbone of South Africa’s
anti-money laundering regime. Like its international counterparts FICA imposes onerous duties
on banks seeing that they are most often used by criminals as conduits to launder the benefits of
crime. In turn, POCA criminalises activities in relation to the benefits of crime and delineates
civil proceedings aimed at forfeiting the benefits of crime to the state. This study identifies the
idiosyncrasies of the South African anti-money laundering regime and forwards
recommendations aimed at improving its structure.
To this end nine issues in relation to money laundering control and banks are investigated.
The investigation fundamentally reveals that money laundering control holds unforeseen
consequences for banks. In particular, a bank that receives the benefits of crimes such as fraud
or theft faces prosecution if it fails to heed FICA’s money laundering control duties, for example,
the filing of a suspicious transaction report. However, if the bank files a suspicious transaction
report, it may be sued in civil court by the customer for breach of contract. In addition, if the bank
parted with the benefits of fraud or theft whilst suspecting that the account holder may not be
entitled to payment thereof, it may be sued by the victim of fraud or theft who seeks to recover
loss suffered at the hand of the fraudster or thief from the bank.
Ultimately, this study illustrates that amendment of some of the provisions of South
Africa’s anti-money laundering legislation should enable banks to manage the aforementioned
and other unforeseen consequences of money laundering control whilst at the same time
contribute to the South African anti-money laundering effort.Criminal and Procedural Law
Mercantile Law
LL.D.
27
Malete, Molly Damaria. "Custody and guardianship of children: a comparative perspective of the Bafokeng customary law and South African common law." Thesis, 2012. http://hdl.handle.net/10210/6189.
Full textAbstract:
LL.M.This research is a comparative study of the provisions for guardianship and custody, including maintenance of the South African common law and customary law. In customary law the emphasis is on the law of the Bafokeng people which is a tribe chosen as group of the research. The purpose of this research is to analyze the provisions of guardianship, custody and maintenance applicable to these legal systems. The analysis is divided as follows: • Guardianship and custody: (i) during the marriage; after divorce; after death of parent(s); of an extra-marital child. • Maintenance of children: (i) during the marriage; after divorce; after death of parent(s); born outside marriage (extra-marital children). The objective is to highlight the similarities and differences between the provisions of these legal systems and to come up with the conclusion whether the one is more favourable than the other in catering for the needs and interests of its subjects. The conclusion will be governed by the following issues: • Which legal system caters for the interests of its subjects? • Which legal system accords with the provisions of the Constitution Act? • Which legal system protects the interests of the child best? Having come to that conclusion, the researcher aims at indicating laws which should be considered for reform.
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Rajoo, Shalini Kisten. "The impact of the constitution on the common law of defamation." Thesis, 1998. http://hdl.handle.net/10413/5147.
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Ramatsekisa, Tsietsi Given. "Harmonizing customary law and human rights law in South Africa." Diss., 2015. http://hdl.handle.net/11602/332.
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Kleynhans, Deidre. "Considering the constitutionality of the common law defence of “reasonable and moderate chastisement”." Diss., 2012. http://hdl.handle.net/2263/27942.
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Hansraj, Shivona. "An analysis of the income tax consequences attendant upon the transfer of contingent liabilities in the sale of a business as a going concern." Thesis, 2017. https://hdl.handle.net/10539/24774.
Full textAbstract:
A research report submitted to the Faculty of Commerce, Law and Management in fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation), 13 September 2017Online resource (iii, 61 leaves)
The transfer of contingent liabilities as part of a sale of business transaction has always been a contentious issue. In particular, there is still a measure of uncertainty in whose hands, if any, contingent liabilities transferred as part of a sale of business may be deductible. Sale of business agreements may be structured in various ways, for example, the purchaser may acquire the seller’s business in exchange for cash, the creation of a loan account, or the assumption of liabilities. Furthermore, in the context of intra-group transactions to which the group roll-over relief provisions apply, the Income Tax Act 19621 (‘the Income Tax Act’) does not specifically address the transfer of contingent liabilities. This research report addresses the income tax consequences arising from the transfer of contingent liabilities from the seller to the purchaser, including an analysis of the relevant group roll-over relief provisions. Key words: Ackermans Judgment, Actually Incurred, Contingent Liabilities, Free-standing Contingent Liabilities, General Deduction Formula, Group roll-over relief, Interpretation Note 94, Sale of Business Transaction, SARS.
GR2018
32
Oosthuizen, Beverley-Claire. "Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods : an investigation into the CISG's compatibility with South African law /." 2008. http://eprints.ru.ac.za/1681/.
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Ndima, Dial Dayana. "Re-imagining and re-interpreting African jurisprudence under the South African Constitution." Thesis, 2013. http://hdl.handle.net/10500/13854.
Full textAbstract:
Text in EnglishThe substitution of the dominant Western jurisprudence for South Africa’s indigenous normative values during colonial and apartheid times has resulted in a perverted conception of law that presents Western jurisprudence as synonymous with law. In the era of the constitutional recognition of African law where the application of the democratic principle demands that the newly re-enfranchised African communities deserve to be regulated by their own indigenous values, the resilience of this legal culture has become problematic. To reverse this situation legal and constitutional interpreters must rethink and reshape their contributions to the achievement of the post-apartheid version of African law envisioned by the South African Constitution. The application of African law in a free and liberated environment must reflect its own social, political and legal cosmology in which its institutions operate within their own indigenous frame of reference. A study of the anatomy of African jurisprudence as a means of gaining insight into the indigenous worldview which was characterised by the culture of communal living and the ethos of inclusiveness to counter the prevailing hegemony of autonomous individualism, has become urgent. To achieve this such pillars of African jurisprudence as the philosophy of ubuntu must be exhumed in order for African law’s rehabilitation under the Constitution to be undertaken on the basis of its authentic articulation uncontaminated by colonial and apartheid distortions. The task of developing the African law of the 21st century to the extent required by the Constitution is a challenge of enormous proportions which demands an appreciation of the historical and political environment in which African law lost its primacy as the original legal system of South Africa after Roman-Dutch law was imposed on the South Africa population. The revival of African law becomes more urgent when one considers that when Africans lost control of their legal system they had not abdicated sovereignty voluntarily to the newcomers. The validity of the imposition of Western jurisprudence is vitiated by the colonial use of such imperial acts as colonisation, conquest, and annexation as the basis on which the regime of Roman-Dutch law was imposed on South Africa. Ever since, African law has been subordinated and denigrated through colonial and apartheid policies which relegated it, via the repugnancy clause, to a sub-system of Roman-Dutch law with whose standards it was forced to comply. The repugnancy clause left African law a distorted system no longer recognisable to its own constituency. The advent of the new dispensation introduced a constitutional framework for re-capacitating South Africa’s post-apartheid state institutions to recentre African law as envisioned by the Constitution. This framework has become the basis on which legislative and judicial efforts could rehabilitate the indigenous value system in the application of African law. The courts of the new South Africa have striven to find the synergy between indigenous values and the Bill of Rights in order to forge areas of compatibility between African culture and human rights. An analysis of this phase in the development of African law, as evidenced by the present study, reveals successes and failures on the part of the courts in their efforts to rehabilitate African law in line with both its value system and the Bill of Rights. These findings lead to the conclusion that whilst South Africa’s legislative and judicial institutions have not yet achieved the envisioned version of African law, there is an adequate constitutional framework through which they could still do so. This study, therefore, recommends that the above institutions, especially the courts, should adopt a theory of re-indigenisation that would guide them as they proceed from the indigenous version of African law which is the basis on which to apply the Bill of Rights. The application of such a theory would ensure that the distorted ‘official’ version of African law which was imposed by colonial and apartheid state institutions is progressively discredited and isolated from the body of South African law and gives way to the version inspired by the Constitution.
Constitutional, International & Indigenous Law
LL.D.
34
Du, Plessis Hanri Magdalena. "The harmonisation of good faith and ubuntu in the South African common law of contract." Thesis, 2017. http://hdl.handle.net/10500/23606.
Full textAbstract:
The legal historical development of fairness in the South African common law of contract is investigated in the context of the political, social and economic developments of the last four centuries. It emerges that the common law of contract is still dominated by the ideologies of individualism and economic liberalism which were imported from English law during the nineteenth century. Together with the theories of legal positivism and formalism which are closely related to parliamentary sovereignty and the classical rule of law, these ideals were transposed into the common law of contract through the classical model of contract law which emphasises freedom and sanctity of contract and promotes legal certainty. This approach resulted in the negation of the court’s equitable discretion and the limitation of good faith which sustain the social and economic inequalities that were created under colonialism and exacerbated under apartheid rule. In stark contrast, the modern human rights culture grounded in human dignity and aimed at the promotion of substantive equality led to the introduction of modern contract theory in other parts of the world. The introduction of the Constitution as grounded in human dignity and aimed at the achievement of substantive equality has resulted in a sophisticated jurisprudence on human dignity that reflects a harmonisation between its Western conception as based on Kantian dignity and ubuntu which provides an African understanding thereof. In this respect, ubuntu plays an important role in infusing the common law of contract with African values and in promoting substantive equality between contracting parties in line with modern contract theory. It is submitted that this approach to human dignity should result in the development of good faith into a substantive rule of the common law of contract which can be used to set aside an unfair contract term or the unfair enforcement thereof.Private Law
LL. D.
35
Makiwane, Paterson Nkosemntu. "The nature of association and dissociation for common purpose liability." Diss., 1999. http://hdl.handle.net/10500/17306.
Full textAbstract:
Since the pre-requisites for common-purpose liability where there was no prior agreement were
laid down in S V Mgedezi 1989 (1) SA 687 (A), the appellate division has moved to resolve related
controversial issues. These include the question whether a joiner-in is a perpetrator or
accomplice, and whether he should be convicted of murder or attempted murder.
It is the question of dissociation which has remained elusive. Courts accept that a person should
only be criminally liable when his dissociation from a common purpose takes place after the
commencement of execution stage is reached. My submission is that whether one dissociates himself
should be a question of fact, to be determined according to the circumstances of each case.
Such determination should pay close attention to the doctrine of proximity. Where a person
played a minor role, or acted under the influence of a dominant partner, this should be reflected
in the punishment imposed.Criminal & Procedural Law
LL.M. (Criminal & Procedural Law)
36
Vambe, Beauty. "A comparative analysis of cancellation, discharge and avoidance as a remedy for breach of contract in South African law, English law and the Convention for International Sale of Goods (CISG)." Diss., 2016. http://hdl.handle.net/10500/21717.
Full textAbstract:
The aim of the thesis was to critically compare termination of contracts in South Africa,
England and the CISG. It was found out that South Africa prefers to use the term cancellation
because it is a remedy of last resort. The problem with cancellation is that is a drastic step of
bringing the transaction to an abrupt and premature end, which is only used when a material
breach occurs. English law uses the term discharge as it refers to the ending of the obligations
under the contract when a breach occurred and represents the point at which one party is no
longer bound by its’ contractual obligations and claims damages. Chapter 3 argued that
though discharge goes beyond cancellation it does not cater for diverse domestic rules which
need uniform international laws. Chapter 4 discussed and argued that avoidance is a term that
was chosen by the CISG to end a contract when a fundamental breach occurs. There were
problems on interpretation of terms and use of diverse domestic rules. The advantage of the
term avoidance is that it is a technical term adopted and given a uniform meaning in the
CISG where interpretation of terms and diverse domestic rules did not apply. Avoidance
furthermore comprised concepts of rescission and termination. From the above it was argued that South Africa needs to develop new terms for termination of a contract and create new laws along the lines of the CISG.Private Law
LL. M.
37
Ndhlala, Ashwell Rungano. "Pharmacological, phytochemical and safety evaluaton of commercial herbal preparations common in South Africa." Thesis, 2009. http://hdl.handle.net/10413/729.
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Mthethwa, Mthokozisi Rodney. "The common law and taxation of trusts in South Africa in the twenty-first century : with emphasis on business trusts." Thesis, 2004. http://hdl.handle.net/10413/1683.
Full textAbstract:
The purpose of this technical report is not to establish a definitive answer as to the validity and suitability of a business trust as a new form of a business entity, but is aimed at addressing the uncertainties that have emanated from the use of a traditional trust structure as a business vehicle. A critical analysis of the recommendations made by the Margo Commission that the taxation treatment of business trusts and companies should be aligned in order to avoid the tax abuse of business trusts will also be undertaken. Globally trusts, especially discretionary inter vivos trusts, are formed purely for carrying on a business including owning and letting of property. However, there are divergent views whether a trust can be used for commercial purposes. Honore (1985 : Preface) is of the opinion that "The use of trusts for business purposes - no new phenomenon, since testators long since saw the advantage of setting up a trust to carry on their enterprises after their death - raises complex issues of control. It should not be assumed without thorough investigation of the past record and future possibilities of business trusts that there is no room for a tertium quid between the commercial partnership and the incorporated company". Wunsh (1986 : 561 - 82) says that a business trust provides a method of setting up or continuing a business alternative to an incorporated company or close corporation (Honore, 1992 : 74). In general a business trust is a pure trust the main object of which is to carry on a business enterprise with a view to making a profit and distributing it amongst the beneficiaries. Notwithstanding the fact that the Trust Property Control Act which controls all forms of trusts was enacted in 1988, Honore (1992 : Preface) is of the view that business trusts call for some further regulation, but not for the full panoply detailed in the Companies Act or even the Close Corporations Act. The analysis of the recommendation of the Margo Commission to align the taxation treatment of business trusts and companies shows that business trusts are not close substitutes for companies as they are 'pure trusts' formed purely for protecting the founder's business for the benefit of the beneficiaries. Although there may be similarities, there are also dissimilarities between business trusts and companies. Further, there are no compelling reasons for changing the current tax regime since taxing business trusts like companies will not necessarily improve equity or efficiency and particularly prevent perceived tax abuse. Tax abuse should be addressed at its source through better enforcement action to limit tax abuse opportunities. In conclusion it will be shown that although a business trust can at present provide certain tax advantages while still preserving the limited liability of the trustees, legislation is gradually being introduced which will iii result in trading trusts being taxed on the same basis as companies. However, the researcher submits that the legislature will not be solving the problem by aligning the tax treatment of business trusts and companies.Thesis (M.Com.)-University of Kwazulu-Natal, 2004.
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Van, der Merwe Leoni. "The impact of South Africa's non-ratification of the Convention on the International Sale of Goods ("CISG") on its trade as well as relations with other countries." Diss., 2017. http://hdl.handle.net/10500/22989.
Full textAbstract:
This research analyses the impact and materiality of South Africa’s choice not to ratify the CISG on its trade as well as relations with other states. As the point of departure, the broader events leading up to the creation of the CISG will be examined as well as UNCITRAL’s mandate and the development of trade in the local and global context. At present, the CISG has been ratified by 85 states. The decisions by common law jurisdictions such as the UK and India not to ratify the CISG as well as the delay by Brazil and Japan will be discussed. The legal, business and political or policy reasons for and against the ratification of the CISG are investigated which focuses on aspects such as legal certainty, uniformity of laws and the reduction of legal costs. An investigation is carried out regarding the historical foundations of the South African law of contract to this framework sets the tone for a comparison between the South African law and the provisions of the CISG. Lastly, a comparison is drawn between the provisions of the CISG and the South African law with specific emphasis on the remedies of specific performance and the right to claim damages which culminates in an overall conclusion that the South African law is compatible with the CISG insofar as remedies for breach of contract are concerned.Mercantile Law
LL. M. (International Economic Law)
40
Mthembu, Louis Velaphi. "To lift or not to lift the veil - the unfinished story : a critical analysis of common law principles in lifting the corporate veil." Thesis, 2002. http://hdl.handle.net/10413/5302.
Full text
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Loops, Sharon Denise. "Heterosexual cohabitation in South Africa, against the background of developments in the law of marriage and marriage alternatives." Thesis, 2009. http://hdl.handle.net/11394/3195.
Full text
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Awa, Linus Tambu. "The interpretation and application of dolus eventualis in South African criminal law." Thesis, 2019. http://hdl.handle.net/10500/26460.
Full textAbstract:
An accused cannot be held criminally liable by a court until he is considered to be
culpable, a process which entails establishing criminal capacity and intention (dolus)
or negligence (culpa). Determining a perpetrator’s necessary intent in the form of
dolus eventualis has proved to be a predicament in South African jurisprudence. This
type of intent occurs when a person does not aim to cause the unlawful act, however,
he subjectively foresees the likelihood that in pursuing with his conduct, the unlawful
result will possibly happen, and he reconciles himself to this possibility. The problem
with this form of intention, especially where the death of another is caused recklessly,
is, amongst others, reservations as to whether the perpetrator’s foresight was of a
real, reasonable or a remote possibility.
This research examines the imperatives and rationale for preceding and current
interpretations and applications of dolus eventualis and associate concepts in South
African as well as in selected foreign legal frameworks in order to provide a
comprehensive perspective on the subject. In this regard, the study challenges
conflicting judgments on the application of dolus eventualis in domestic courts,
especially as regards homicide- and putative private defence cases, amongst others.
It is evidenced that in case law concerning dolus eventualis, legal rules were not
properly articulated when determining this type of criminal intent. In this investigation,
the legislative framework applicable to dolus eventualis under international law is also
critically evaluated with the aim of facilitating the comprehension of this element in
South African law.
As the concept of dolus eventualis is an indispensable concept in South African
criminal law, recommendations are proposed on the application and interpretation of
dolus eventualis suitable to the South African landscape, which includes possible law
reform.Criminal and Procedural Law
LL. D. (Criminal and Procedural Law)
43
Galt, Harold H. "An analysis of the South African Revenue Services' recognition of unmarried partners as spouses." Thesis, 2002. http://hdl.handle.net/10413/10755.
Full textAbstract:
The focus of this study is on the criteria and processes used by the South African
Revenue Services (SARS) in recognising spouses in permanent, unmarried
unions. In theoretically positioning this focus, four possible areas of tax benefits
were reviewed . These include: (i) donations tax, (ii) capital gains tax, (iii) estate
duty tax and (iv) transfer duty. Also , the focus of this study was positioned
relative to South African taxation acts. Specifically, three Acts were selected for
review, viz.: (i) the Income Tax Act, No. 58 of 1962, the Estate Duty Act, No. 45
of 1955, and the Transfer Duty Act, No. 40 of 1949. These Acts may be
understood relative to the South African Constitution's framing of notions like
equality - given that these Acts signal the legislation's intention to honour the
constitutional rights of its tax-paying citizenry. Furthermore, a theoretical
framework that highlights official and espoused perspectives of practice is
reviewed as it provides a theoretical frame for this study. Given this legislative
and theoretical background the following aims were focussed: (1) To identify the
official and espoused criteria used by the South African Revenue Services to
recognise unmarried partners as spouses, and (2) To identify the official and
espoused processes used b~ the South African Revenue Services to recognise
unmarried partners as spouses. The chosen methodology is an explorative descriptive
methodology, as situated within a qualitative framework. Data
sources are described as constituting the three tax Acts, a senior SARS official,
and SARS helpdesk personnel. Data selection criteria are described , and
convenience and purposive sampling are the stated data selection techniques.
Document analysis and interview schedules were used to collect data. Data was
managed and analysed via the use of several data analysis techniques. Results
are presented and discussed. Significantly, SARS has non-specific criteria that
are nebulous, and open to interpretation. Furthermore, processes are poorly
stated and provide insufficient guidance to the taxpayer. Given these outcomes,
this study also offers two South African legal cases that cogently illustrate criteria
and processes for recognising a spouse. Each of these cases are analysed
regarding the criteria and processes used to determine the definition of 'spouse'.
These cases, while dealing with issues of same-sex adoption and same-sex
partner's rights to remuneration benefits serve to highlight factors that may be of
use to SARS. Furthermore, international case exemplars are also discussed.
Specifically, Canada's taxation laws were focussed. Canada's criteria and
processes used to define common-law partners (read as spouse for purposes of
this study) serves as an informative case exemplar, relative to other countries
also investigated in this study, viz .: the United States of America , Belgium and
other European countries. Finally, several recommendations are stated , and an
evaluation of the study is provided.Thesis (M.A.)-- University of Durban-Westville, 2002
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Lugomo, Nonstikelelo Pearl. "Unequal bargaining power in the law of contract : an analysis of its common law treatment by the courts and the devices that can be used to develop inequality as a defence to challenge the validity of a contract." Thesis, 2013. http://hdl.handle.net/10413/10930.
Full text
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Polaki, Angelina Tlotliso. "The shortcomings of the common law and the Companies Act 61 of 1973 in regulating executive remuneration in South Africa : is the code of corporate practices and conduct the answer for listed companies?" Thesis, 2003. http://hdl.handle.net/10413/5175.
Full textAbstract:
King II articulated in an open manner, issues of disclosure, transparency, comparator
ren1lmeration packages and a robust approach to the paYment of con1pensation in relation to
poorly performing directors. While directors owe fiduciary duties to the company
(shareholders present and future), by paying themselves huge packages, they do no longer act
in the best interests of the con1pany because awarding themselves exorbitant packages may
frustrate their duty to maximise shareholder value. The solution is that their interests be linked
to those of shareholders by requiring that their pay be linked to their performance. With the
advent of corporate governance reforms, other stakeholder interests have to be taken
cognisance of by directors in corporate decision Inaking. As such, a huge gap between the
salaries of rank and file employees and those of executive directors is seen as a conscious
move to ignore the interests of legitimate stakeholders when there is no compelling reason to
do so. To try and align the interest of shareholders and directors, it is felt that more emphasis
has to be placed on actively engaging shareholders and employees in the determination of
executive remuneration.
It is subn1itted that pay that is not linked to performance is a breach of fiduciary duties, in
particular, duty to avoid conflict of interest. However, our common law and Companies Act
61 of 1973 fail imn1ensely to address concerns relating to excessive remuneration pay. In
particular, the business judgment nl1e precludes minority shareholders taking action on the
basis of wrongs committed against the company by virtue of pay not being linked to
performance. Neither has the introduction of corporate governance reforms impacted heavily
on setting executive remuneration. They have not proved effective in curbing fat cat pay. It is
acknowledged that these reforms have ~rought about a profound impact on attitudes in the
corporate environment. However, numerous deficiencies, particularly in the context of South
Africa can be identified.
This thesis serves as a means of establishing whether fron1 a legal perspective, following
recent reforms, the negative impact of exorbitant remuneration pay is of such a serious nature
as to warrant more stringent regulation in one form or the other. South Africa should consider
revan1ping and tightening current legislation, which as submitted is lacking in a number of
respects. As a strategy to eradicate exorbitant pay, it is submitted that directors fiduciary
duties have to be revised and legislated in order to successfully establish directors wrongdoing. It is felt that legislative enactment may be made stronger by the fact that it may
have stronger and sharper teeth and hence able to reach where self-regulated codes are weak.Thesis (LL.M.)-University of Natal, Durban, 2003.
46
Kasuso, Tapiwa Givemore. "The definition of an "employee" under labour legislation : an elusive concept." Diss., 2015. http://hdl.handle.net/10500/21121.
Full text
47
Rau, Lizette. "The constitutionality of abortion limiting legislation in South Africa." Diss., 1996. http://hdl.handle.net/10500/17594.
Full text
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Rammutla, Chuene William Thabisha. "The "official" version of customary law vis-a-vis the "living" Hananwa family law." Thesis, 2013. http://hdl.handle.net/10500/10614.
Full textAbstract:
The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal.
Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him.
However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes.
The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law.Public, Constitutional, & International Law
LLD (International and Constitutional Law)
49
Terblanche, Francis Stephen. "Simulated contracts and the transfer of ownership as a form of real security in South African law." Diss., 1997. http://hdl.handle.net/10500/6770.
Full textAbstract:
Money lenders frequently use sale and lease back agreements as an
alternative to other more conventional forms of security. These
agreements are popular because they are simple and inexpensive to put
in place. Unfortunately, South African courts give legal effect to the true
intention of contracting parties. Sale and lease back agreements are
often held to be simulated contracts and as such they are enforced as
disguised pledges. One of the few alternative security options available to
money lenders, is a notarial bond registered in terms of the Security By
Means of Movable Property Act 57 of 1993. This act has been criticised
for creating an ineffective form of security that is costly and cumbersome
to put in place. It is suggested that the current security options available
to money lenders are supplemented with the creation of a more user
friendly public register for the registration of security interests.Private Law
LL.M.
50
Nel, F. (Francisca). "Die rol van diskresie by die toelaatbaarheid van getuienis wat in stryd met die grondwet verkry is." 2000. http://hdl.handle.net/10500/15597.
Full textAbstract:
Text in AfrikaansArtikel 35(5) van die Grondwet 108 van 1996 handel oor die uitsluiting van ongrondwetlike getuienis en bepaal dat sodanige getuienis uitgesluit moet word indien toelating daarvan sal lei tot 'n onbillike verhoor of tot nadeel sal strek vir die regspleging. Uit die bewoording van die artikel blyk dit dat die howe geen diskresie het ten opsigte van die toelaatbaarheidsvraag nie en 'n streng uitsluitingbenadering moet volg. Die doel van hierdie verha• ndeling is om ondersoek in te stel na die mate van diskresie .en die wyse ·waarop diskresie toepas word in hierdie besluitnemingsproses. Twee benaderings is deur die howe gevolg, naamlik 'n benadering waar 'n wye diskresie uitgeoefen word en 'n benadering waar 'n beperkte diskresie uitgeoefen word, dus 'n gekwalifiseerde uitsluitingsbenadering. Die skrywer doen aan die hand dat beide gronde vir uitsluiting van belang is en dat die howe verkeie faktore moet oorweeg ten einde 'n beslissing te vel oor die insluiting of uitsluiting van ongrondwetlike getuienis. 'n Balans moet dus gehandhaaf word tussen die belang van die beskuldigde op 'n billike verhoor en die belang van die gemeenskap daarin dat regspleging nie benadeel moet word nie en dat reg en geregtigheid moet geskied
Section 35(3) of the Constitution Act 108 of 1996 deals with the exclusion of unconstitutionally obtained evidence and stipulates that such evidence must be excluded if the admission would render the trial unfair or be detrimental to the administration of justice. From the wording of the section it seems that the courts have no jurisdiction in regard to the admissibility question and that a strict exclusionary approach must be followed. The purpose of this dissertation is to investigate the amount of discretion that the Courts have, and the manner in which this discretion is applied in the process of decision making. Two approaches were followed by the courts namely a wide discretionary approach and an approach where a strict discretion was applied. It is submitted that botR grounds for exclusion are of importance and that the courts must consider a variety of factors in deciding the question on the inclusion or exclusion of unconstitutionally obtained evidence. A balance must be struck between the interest of the accused in a fair trial and the interest of the community that the administration of justice must not be prejudiced and that justice must prevail.
Criminal & Procedural Law
LL.M. (Law)