Dissertations / Theses on the topic 'Constitutional references'

"The writing of constitutions in Africa in the 1990s seems to have become fashionable after years of political wilderness following decades of one-party rule, military dictatorships and no-party regimes. African states engaged in the process of crafting new and democratic constitutions in search of democratic and legitimate governance based on the free will of the peoples, and to foster democratic traditions. Transition to democracy is a sacred undertaking, the challenge of which is to develop constitutional and institutional mechanisms in the hope of building viable and durable democratic values and practices that would guarantee political stability, peaceful and orderly change of government, the rule of law and the complete respect for human rights. Constitution-making must be seen as a means of bringing peace and creating a stable and prosperous African continent where the people take charge of the governance and their political and economic destiny in complete freedom. This study inquires into the extent to which this goal has been achieved, with particular reference to Swaziland and Uganda. Swaziland is the only absolute monarchy in the Southern Africa region after Lesotho adopted a democratic constitution in 1993, with the King becoming a constitutional monarch. Uganda has been operating under the Movement Political System (MPS) that, until recently, did not allow free political activity. ... The study is divided into five chapters. Chapter 1 focuses on the circumstances (context) and gives an overview of the organizational structure. Chapter 2 deals with the concepts and basic principles of constitutionalism, democracy, and human rights. Chapter 3 scrutinises the legislative mechanisms that set the process in motion and how the constiutional mandate was executed. The chapter considers the effect of the enabling legislation on ratification and implementation of the rights enshrined in the African Charter. It also looks at the role of civil society in influencing the process. To a limited extent, a comparative case study of other processes in Africa, especially the South African and Zambian experiences, is made. Chapter 4 is a discussion of human rights instruments providing for the right to participate; article 13 of the African Charter, article 25 of the International Covenant on Civil and Political Rights (ICCPR) as well as article 21 of the Universal Declaration of Human Rights (UNDHR). A discussion of the content and meaning of the right to participate in international law is made, focusing on the jurisprudence of the African Commission on Human and Peoples' Rights, as well as the jurisprudence of the Human Rights Committee (HRC). Chapter 5 is conclusions and recommendations." -- Introduction.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005.
Prepared under the supervision of Dr. Henry Onoria at the Faculty of Law, Peace and Human Rights Centre, Makerere University, Kampala, Uganda
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

A partir de l'étude des décisions du Conseil constitutionnel, la recherche porte sur l'exercice d'une technique particulière d'interprétation des normes de référence par le juge constitutionnel. De ces interprétations spécifiques résulte l'élaboration, par le juge, des normes de concrétisation. Les normes de concrétisation sont fondées expressément sur les normes de référence du contrôle de constitutionnalité et des lois et en constituent un mode d'emploi. Elles forment des normes juridiques infra-constitutionnelles dont certaines s'imposent au législateur et d'autres s'imposent au juge constitutionnel lui-même. En effet, une première catégorie indique au législateur les critères qu'il doit respecter pour que les dispositions législatives qu'il adopte soient conformes aux normes de référence. Une seconde catégorie établit des méthodes que le juge constitutionnel va utiliser dans le cadre du contrôle de constitutionnalité des lois. Ces règles nouvelles concrétisent les normes de référence à deux niveaux. D'abord, elles précisent leur contenu. Ensuite, elles facilitent leur application. Les normes de concrétisation sont alors un outil jurisprudentiel qui constitue une règle de droit. Par ces différentes caractéristiques, elles permettent au juge à la fois d'élargir ses compétences et de stabiliser sa jurisprudence
Based on the analysis of the French Constitutional Council case law, this research studies a specific technique which the constitutional judge uses when interpreting reference norms. Doing so, the constitutional judge creates concretization norms. Concretization norms are built on reference norms of the constitutional law review, and can be viewed as a user manual of these norms. They are infra-constitutional norms. Some of them are binding to the legislator while other command the constitutional judge itself. Indeed, one category establishes the criteria the legislator must follow in order to pass laws in compliance with the Constitution. A second category establishes methods which the constitutional judge will use when proceeding to the constitutional law review. These news rules are a concretization of reference norms on two levels. First, they specify the content of these norms. Second, they facilitate their application. Hence, concretization norms are a judicial tool and a legal norm. Through all these characteristics, concretization norms are used by the constitutional judge in order to extend its jurisdiction but also to stabilize its case law

The purpose of this dissertation is firstly to define and analyse the concept of minority rights and to place it in perspective in relation to surrounding concepts such as communalism, ethnicity, groups and individualism. This is done through a critical discussion of various theoretical perspectives relating to the subject matter. Comparisons are drawn between the policies of various plural societies aimed at accommodating their ethnic diversity, either constitutionally or through methods that lack legitimacy. This is followed by a discussion and evaluation of consociational democracy and federalism as possible solutions to the problems created by ethnicity and minorities in a plural society. Having made the hypothesis that democracy is best served in a multi-ethnic society by a system that emphasizes group rights in addition to individual rights and which accepts the notion of government through consensus, the emphasis then moves to the particular nature of the South African minority question. The policies of the various actors on the South African political scene towards minority rights are analysed critically. Attention is given to factors which may influence group formation in a system emphasizing voluntary association, such as race, ethnicity, class and ideology. There is also a discussion of the nature of the rights which minorities may claim and emphasis is placed on the requirement that minorities should be able to levy strategic influence without disrupting the society as a whole. Finally, this dissertation deals with the question of which constitutional alternatives offer the most promising solution to the problems caused by South Africa's cultural diversity. Although a political system emphasizing individual rights might come closest to the liberal ideal and may be suitable to an ethnically homogeneous country, the violent history of plural societies where group rights have been neglected, indicate the need for a pluralist solution in South Africa. While there is a strong tendency among Blacks to view the concept of minority rights as yet another Apartheid ploy to maintain White domination and privileges, the purpose of this paper has been to prove that minority rights is a universal concept and is not a creation of Apartheid, although the National Party has managed to almost irreversibly taint it. Yet, in a system of group formation through voluntary association, the concept of minority rights can serve as a powerful tool to help facilitate a negotiated settlement towards a predominantly Slack government based on consensus. A true power-sharing consensus-orientated constitution has been found in Lijphart's notion of a consociational democracy and the view is taken that the Natal-KwaZulu Indaba's constitutional proposals is an example of such a constitution.

From Introduction: It was a feature of South African political life to have senseless and continued political violence especially in areas such as KwaZulu Natal and Gauteng., There were certain places that were demarcated as "no-go areas" in other parts of the country for political rivals* This research has been directed by the cries of many South Africans pleading for political tolerance. Tolerance was a term used by both politicians and ordinary people alike and therefore open to misuse and various interpretations. As a term it was therefore without adequate clarification on its meaning. It is an attempt of this study to clarify and promote this value of tolerance. In Chapter One, the value of tolerance is examined. It is described as putting up with what is disliked or disapproved for the sake of others. But it is deliberate and is therefore a virtue. Positive attitudes, motives and power are central to tolerance. For tolerance to be sustained, solid foundations such as education, respect for others and their freedoms, democracy, justice, stability and reciprocity are to be laid. A light is also being shed on the limits of this virtue. Considerations and circumstances which need to be taken when deciding on each an action are the very motives and conditions for tolerance. This further makes the issue of tolerance to be complex. Church history shows that tolerance does not come naturally. It is a difficulty because of certain principles that are at stake. When viewed from the twentieth century perspective many of Church history's periods were of intolerance because the church had power. Tolerance was an exception, a plea of those without power. South Africa has to unlearn much of intolerance because of the past that militated against tolerance. Fortunately tolerance is now being firmly entrenched as law. Even though it is so, the tension of being tolerant and intolerant still exists especially in the whole area of abortion. Let us examine why tolerance is such a complex issue and a virtue to be promoted.

This study is an analysis on the rights of women in the new Zimbabwean Constitution with reference to International Law. It seeks to answer the question does the new Constitution address the limitations of the old with regard to the rights of women in international law. The new Constitution is analysed, against international and regional human rights instruments, finding positive development in Constitutional entrenchment of women’s rights in education, health and marriage, the principles of equality and non-discrimination; concluding that the new Constitution sets the platform for protecting and fulfilling women’s rights, while also recognising there is room for improvement in the Constitutional text to fully protect women’s rights. The study goes further to analyse the relationship between the domestic law international law from a constitutional perspective. Women benefit from the monist position of customary international law which ensures individuals may institute claims based on international customary law. Treaties, however, require domestication into municipal law, a position which disadvantages women where the rights are not constitutionally entrenched and the relevant treaties have not been domesticated. This position need not necessarily prejudice women; the legislature is seen to have an important role in assessing existing legislation and fulfilling its mandate of enacting new legislation (complete with remedies for violations) compliant with the Constitution and international human rights standards to protect the rights of women. Areas of focus in strengthening women’s rights are highlighted as part of the legislature’s role. Legislation should have implementation mechanisms for the realisation of women’s rights. The position of international law can be strengthened by the judiciary when it takes an active role in ensuring compliance with international human rights standards on women’s rights, responding positively to the social dynamics in adjudicating on the rights of women.
Dissertation (LLM)--University of Pretoria, 2013.
lk2014
Public Law
LLM
Unrestricted

This study examines the custom of circumcision in the context of culture, law and the Constitution. In Chapter 1 the writer considers the pervasive role of culture in the context of the current debate in relation to equality versus culture. In Chapter 2 the writer considers the origin, development and the legal significance of the custom of circumcision in the Eastern Cape. In Chapter 3 the writer traces the circumstances leading to the enactment of the Provincial statute governing circumcision of children. In this chapter the writer also poses the question whether an aspect of morality can effectively be regulated by law. Chapter 4 looks at the question of cultural rights in terms of the Constitution and the possible effect of the promulgation of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2000 on the approach of the courts in respect of constitutional challenges directed at some aspects of customary law. Chapter 5 looks at the custom of circumcision and the need for the protection of children. The writer raises the issue of the role of traditional leaders in the eradication of abuses associated with circumcision. The last Chapter comments on the reasons for the failure of the new Act governing circumcision in the Province.

"The Treatment Action Campaign (TAC) case, as a model for Africa, marks a positive step in protecting the right to health, particularly pregnant women and their infants. It provides a rich jurisprudence on protection of the right to health in Africa, and particularly in the context of the HIV/AIDS pandemic. The TAC case definitely portrays the strength and role of an independent judiciary in the enforcment of constitutional rights such as socio-economic rights. The competence, legitimacy and power of the courts to pronounce on the constitutional validity of socio-economic rights justifies that it is indeed a model for the enforcemnt of the right to health in Africa. However, the right to health is not justiciable in many African constitutions. It is submitted that failure to address human rights violations, particularly the right to health, fuels the HIV/AIDS pandemic. This calls for government to take measures to protect the rights of persons living with HIV/AIDS, particularly women. The African Charter on Human and Peoples' Rights (ACHPR), of which most African countries are state parties to, obligates states parties to take necessary measures to give effect to the rights enshrined therein, including socio-economic rights. Socio-economic rights, in most African countries, including particularly Cameroon, are not constitutionally protected as justiciable rights. Thus, the jurisprudence of the TAC case could inspire African countries whose legislation and case law on socio-economic rights are underdeveloped, to make use of the jurisprudence issued by the Court in this field. The TAC case could also be used to persuade national courts to enforce socio-economic rights, given the prevalence of socio-economic rights violations in Africa. Thus, in this regard, it will be argued that governments have a fundamental obligation to ensure that the right to health is respected, protected, promoted and fulfilled as provided in regional and international human rights instruments. ... Chapter 1 of this study highlights the structure of the whole study. Chapter 2 provides an in-depth analysis of the TAC case, the basis of the ratio decidendi of the TAC case. The analysis includes the implications of the TAC case on the SA government. Chapter 3 reviews the application of international and regional human rights instruments protecting the right to health, and how these instruments are interpreted by human rights treaty monitoring bodies and municipal courts to impose on the state the duty to protect the right to health. Section 27 of the Constitution is also lightly considered. The discussion concentrates on the relevance of these norms and jurisprudence to the protection of the right to health in the context of HIV/AIDS in South Africa. The thrust of the theory of separation of powers is extensively discussed on the basis that the right to health encompasses seeking redress whenever it is violated. Thus, the study explores the judicial role in the HIV/AIDS era, to ensure that the right to health is enforced. However, it is noted that judicial independence and the theory of separation of powers, amongst others, may impede the enforcement of the right to health when it is challenged. Chapter 4 evaluates the Cameroon approach to the right to health in the Constitution, and seeks to find answers as to whether the judiciary has capacity and expertise to impose on the government the obligation to respect, protect and fulfill the right to health. Furthermore, the reasons are provided as to why the TAC case serves as a model for Africa. Chapter 5 is a summary of the conclusions drawn from the whole study and makes some recommendations." -- Introduction.
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2005.
Prepared under the supervision of Dr. A.N. Atangcho at the Association for the Promotion of Human Rights in Central Africa (APDHAC), Catholic University of Central Africa, Catholic Institute, Yaounde, Cameroon
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

Pour evaluer l'impact d'un element sur la toxicite potentielle d'un echantillon, il convient avant tout de pouvoir identifier, separer et quantifier ses differentes formes chimiques (speciation). Cette etude comporte la mise au point d'une methodologie analytique pour la speciation de six composes de l'arsenic (arsenite, arseniate, acides monomethylarsonique mma et dimethylarsinique dma -, arsenobetaine et arsenocholine) dans des tissus de poissons et de moules. Il est montre qu'une methode de pretraitement de l'echantillon, basee sur des extractions au methanol et a l'ether, garantit une recuperation totale des especes et permet une analyse de la solution finale par chromatographie ou electrophorese capillaire. La separation par electrophorese capillaire a ete optimisee sur des solutions standards. Quatre especes (arsenite, arseniate, mma et dma) ont ete separees avec une solution nettement superieure a celle de la chromatographie en phase liquide. Neanmoins, l'arsenobetaine et l'arsenite coeluent. Les meilleurs resultats obtenus en chromatographie en phase liquide l'ont ete par appariement d'ions sur support polymere en utilisant deux conditions d'elution isocratique. Afin d'ameliorer les limites de detection, la faisabilite d'une technique de couplage associative (hplc-edxrf), et de deux techniques de couplage en ligne (hplc-icp/aes et hplc-hg-qfaas) a ete evaluee. Il s'avere que la deuxieme methode est adaptee a la determination de l'arsenobetaine et l'arsenocholine et que la derniere permet la separation et la quantification des autres composes avec des limites de detection de l'ordre de quelques dizaines de ng. L'analyse des echantillons naturels montre que le protocole analytique mis au point sur des solutions standards est transposable et que l'arsenic s'y trouve essentiellement sous forme non toxique (arsenobetaine)

The company developed through an evolutionary process. Our conceptualization of the company and its position in law is determined by our philosophical approach to justice (our underlying system of belief), the resultant theory of law that we adopt and the underlying economic, political and social environment in which the company operates. Three broad philosophical approaches to justice are identified in this study. The first revolves around the idea of maximizing welfare, the second around the idea of respecting freedom and the third approach sees justice as bound up with virtue and the good life. It is argued in this thesis that we cannot detach arguments about justice and rights from arguments about virtue and the good life. It is not possible to devise a grand theory of the nature of the company. But from a normative perspective the communitarian theory and arguably the concession theory (more particularly the dual concession theory of Dine) is the most acceptable theory of the nature of the company. The real entity theory, as articulated by Dodd, is the preferred theory of the corporate personhood of the company. A company, especially a large company, is a public or quasi-public entity and a corporate citizen that should have the same legal, social and moral rights and responsibilities as a natural person. From a normative perspective the entity maximization and sustainability model (EMS model) and the stakeholder model are the most attractive models of corporate governance. It is generally accepted that the ultimate purpose of the company must be to serve society. Subject to this ultimate and supreme objective, the corporate objective on a narrower level must be to maximize and sustain the company as a separate legal entity. The aforesaid conceptualization of the company corresponds with the normative value system that underpins the Constitution of the Republic of South Africa, 1996 (the Constitution), and therefore also the Companies Act 71 of 2008 (the Companies Act of 2008). The Constitution encompasses a social democratic vision for South Africa in which commercial autonomy must be tempered by virtue, dignity and social and economic equality. The Companies Act of 2008 gives express recognition to bring company law within our constitutional framework. There has been a fundamental paradigm shift in the normative value system that underpins our company law since liberalism and laissez-faire reigned supreme in the eighteenth and nineteenth century Great Britain, from which country our company law originates. The underlying philosophy and approach of our company law is now more aligned with that of Canada. This also has an important effect on the rights, protections and remedies of creditors and employees of the company.
Thesis (LLD)--University of Pretoria, 2017.
Centre for Human Rights
LLD
Unrestricted

Magister Legum - LLM
The common law duties have been preserved by the partial codification of the duties of directors in terms of the Companies Act of 2008 (‘2008 Act’). One such duty is the duty to disclose personal financial interest in terms of s 75 of the 2008 Act. The need for directors to disclose personal financial interest has become more necessary than ever before in South African companies, particularly State-Owned Companies (‘SOCs’), due to their role in the South African economy. The injury caused by the breach of this duty is not only to the company, but more harm is caused to the economy and the beneficiaries who are the recipients of services rendered by SOCs. There has been a plethora of media reports of poor corporate governance in SOCs which is attributed to conflict of interest due to failure of directors to disclose their personal financial interests in proposed transactions or approved agreements.

This study Is concerned with the Federal National Council (FNC) in the United Arab Emirates (U.A.E.) under the 1971 Constitution. In selecting the U.A.E. as a case study, a historical and socioeconomic perspective is adopted. The thesis analyses the U.A.E. traditional society and the effect of external factor namely its relation with Britain, and internal factor, viz, the advent of oil wealth, on the power structure in the emirates. Both factors increased the concentration of central power and decreased popular participation. The study provides a theoretical appraisal of the role and functions of the legislature in developing countries. It examines the constitutional functions namely legislative, political and financial. The study suggests new roles that the legislatures performs in Third World countries. The thesis examines the historical development of the U.A.E. constitutional system. Such development ended In 1971 when the emirates adopted a "Provisional Constitution" to the requirements of the rulers. The study explores the 1971 constitution with particular emphasis on the role of the National Council. It analyses the composition, functions, role and constitutional arrangements of the National Council In the U.A.E. The study provides an analysis of the major political and constitutional cases, In which the FNC was a part, in order to examine the practical working of the constitutional provisions in reality. Finally, the thesis attempts to explain the limitations, Imposed on the National Council, present in the existing constitutional framework and suggests some improvements to the status quo. The coimnon ground throughout the thesis is that a constitution with a democratic tendency does not necessarily establish democratic institutions and that it would be more acceptable in a developing country to introduce evolutionary rather than radical changes to its constitutional system. However, the study clarifies the difficulties of concentration of central power in developing countries.

This study was to investigate the role played by traditional authorities in IDP policy implementation in local municipal councils in the Vhembe District located in Limpopo Province. The specific objectives of this study were to characterise the traditional authority serving in the municipal councils. Traditional leaders serving in municipal councils, the district mayor, local municipal mayors, managers, IDP managers, district and provincial representatives of the House of Traditional Leaders in Limpopo Province were interviewed using semi-structured sets of questionnaire to obtain the required data. The data were entered into an Excel Spreadsheet and subsequently exported into an SPSS for analysis. The results of the study revealed that traditional authority forms an integral part of IDP policy implementation in Vhembe District Municipality. The results further revealed that perceptions of stakeholders vary as to the role played by traditional authorities in the IDP policy implementation process. The results revealed that some traditional leaders agreed that participation in IDP policy implementation (45.5%), involvement (45.2%), the submission of views (41.2%); ward committee meetings (42.8), council IDP policy (90.0%), role (50.0%), submission of proposals (38.7%) and consultation by the municipality (93.2%), were all satisfactorily taking place in the municipality. Furthermore, the results indicated that traditional leaders serving in municipal councils were members of the ruling party (40.0%), aged on average 55.26 years, distributed between 35 and 75 years, and were from extended households of 11.3 members per household, distributed between 3 and 25 members ¯ with an average of 2.4 spouses per traditional leader, distributed between one and five spouses. The majority had attained secondary level education (40.0%), tertiary level education (33.3%) and primary education (26.7%). They showed high experience ranging between 2 to 35 years, and 17.46 years on average as traditional leaders – with a further 7.66 years of experience in the municipal council. The majority make their livelihood by way of compensation from council (73.3%), wages from government as traditional leaders (93.3%), or employment (6.7%). All the traditional leaders own vehicles. The study concluded that the demographic and endowment characteristics of these traditional leaders influence their role in municipal IDP policy implementation.
Thesis (PhD)--University of Pretoria, 2012.
School of Public Management and Administration (SPMA)
unrestricted

Internationally, as well as in South Africa, legal reform aimed at increasing taxpayer information transparency has gained momentum over the past few years, especially in the light of the G20 led Base Erosion and Profit Shifting ('BEPS') Project. Ensuring that the fundamental rights of the taxpayer, guaranteed by the Constitution1, remain protected amidst the hurried implementation of these reforms is of paramount importance and cannot be overlooked or deferred. To a great extent, the question as to whether the current rules, regulations, and practices surrounding exchange of taxpayer information in South Africa would pass constitutional muster has, as yet, gone unasked and unanswered in academic literature. This minor dissertation seeks to identify and analyse the constitutional questions raised by these existing rules and practices, with special reference to the constitutional rights of taxpayers in South Africa. Specifically, the current framework for both the automatic exchange of information and exchange upon request is considered in the context of two constitutional rights, namely the right to privacy and the right to just administrative action, with due recognition of the general limitation of rights provided for in the Constitution. Importantly, this paper does not dispute the need for exchange of taxpayer information in principle, nor the desirability of effective tax administration. It is furthermore appreciated and acknowledged that a balance must be struck between the often competing interests of the South African Revenue Service ('SARS') as an administrator seeking to discharge its mandate in the most efficient manner possible, and the fundamental rights of the taxpayer.

This study seeks to understand and examine the role of public policy units with a specific focus on the South African National Parliament Policy Management Unit (PMU). The problem being investigated is that of a lack of constructive support and debate in understanding the role and functions of policy management units. Thus, the scope of the study is limited to policy management units with the South African Parliament PMU as a special reference. The primary objective of this study is to investigate the role of policy management units, with particular reference to the PMU in the South African Parliament. The secondary objectives will then be to provide a theoretical perspective of the role and functions of policy management units
and to develop a case of the PMU in Parliament for further analysis and examination. Examples of existing policy units and the support they have with parliaments will be produced, assessed, and explored.

Thesis (LLD)--Stellenbosch University, 2000.
ENGLISH ABSTRACT: This dissertation is an attempt at reconciling the existing (and until recently predominant) private law concept of ownership and the property rights espoused by the new constitutional order. The attempts at land reform in South Africa and Germany are used as specifie examples of the manner in which the whole property law order in both these legal systems is developed through legislative and judicial initiative, on the basis of the constitutional provisions concerning property protection and regulation. The purpose of the investigation is to determine to what extent constitutional development of the private law of property will result in a property law order serving the socio-economic and political goals of economic growth and self-fulfilment and empowerment of the individual. Focus is placed on the influence of the constitutional protection and regulation of property as a mechanism for developing the private law of ownership in Germany and South Africa. In the first part of the exposition, the choice of legal comparison as course of inquiry is substantiated, and the terminological difficulties connected with an investigation into the development of the private law of property by the constitutional protection and regulation of property are discussed. Attention is given to the use of the terms "ownership" and "property" in the private law and in the constitutional context. The term "tenure" is also discussed in the context of land reform in South Africa. Further, the usc of terms such as "public interest", "common weal" and "public purposes" is discussed. The use of these terms are particularly complicated by the fact that each of them are often used in more than one sense, and that the use of these di fferent terms overlap to varying extents. The second part of the exposition contains information on the background of the constitutional property orders as they arc found in Germany and South Africa. The drafting histories of the South African and German constitutional property clauses indicate that in both these legal systems, the constitutional property clauses have hybrid ideological foundations. Both contain a compromise between, on the one hand, classical liberalism (which affords the holders of rights a high degree of individual freedom and autonomy) and, on the other hand, social democracy (which allow stronger regulatory measures, also upon private properly). Further, some of the structural aspects connected to constitutional protection and regulation of property in Germany and South Africa are discussed. The positively phrased property guarantee in art 14 GG is compared with the negatively phrased "guarantee" of s 25 Fe, whereby the transitional property guarantee in s 28 JC is also considered. Further, the basic structure and stages of an inquiry into the constitutional property clause are discussed, with reference to differences between the German and South African methods. These differences are not of such a nature that it excludes further comparison. Ilowever, it is necessary to keep the differences in the judicial system in mind when conducting a comparison of the present nature. Therefore, a brief overview of the judicial systems of Germany and South Africa is provided, with specific reference to the manner in which the courts resolved certain property questions. The principles underlying the constitutional orders of Germany and South Africa are also discussed with specific reference to their significance for the treatment of property issues. In particular, the meaning of the constitutional state (Rechtsstaat) and the social wei fare state (Sozialstaat) for the solution of problems connected to property is discussed. It is indicated that the legitimacy of the legal order in general and property law in particular, depends on the degree of success in the implementation of these values. Further, it is indicated that the implementation of these values also determines the importance of private property and/or regulation thereof in a specific legal system. In the third part of the exposition, the relevance of the constitutional protection and regulation for the private law of ownership is discussed. The expansion of the concept of property by the application of a "purely" constitutional definition thereof raises the question as to the continued relevance of the private law concept of ownership. This issue is discussed with reference to the protection of property in terms of the constitution in comparison with the scope of property in private law. It is indicated that the "exclusively constitutional" concept of property is by no means based only on Constitutional law. The role of the private law concept of ownership in a constitutional order is then elucidated. The discussion then turns to an analysis of the limitations on property endorsed by the constitutional order. Two main kinds of limitation are possible: (i) limitation of property through vertical operation of the constitution (ie a broad category of legislative and administrative deprivation (regulation), and a more specialised category, namely expropriations), and (ii) limitation through horizontal operation of the constitution (ie through the inroads allowed on property rights by the protection of other rights in the Bill of Rights). It is indicated that the application of the public interest / public purposes requirements are sometimes intended to protect individual interest above those of society in general. In other cases, the public interest / public purposes requirement is aimed at securing the interests of the society at large. Further, it is indicated that the purpose of constitutional "interference" in the area of private property law is to correct imbalances in the relations among private persons which are regarded by the law as "equals," even if they are not equal for all practical purposes. The fourth part of the exposition concentrates on the land reform programmes in Germany (after the reunification of 1990) and South Africa (since 1991) in order to analyse the attempts by the legislature and judiciary to give effect to the improved property order as anticipated by constitutional development of property. In both Germany and South Africa political changes made land reform programmes essential: In South Africa the land reform programme was introduced to reverse the injustices created by colonialism and apartheid. A tripartite programme is employed for this purpose. The new kinds of land rights created through this system of land reform are indicated. The manner in which this body of law is treated by the courts is also analysed with reference to its relevance for the development of Property Law in general. In Germany a property and land reform programme became necessary with the reunification. On the one hand, the socialist property order in the former GDR had to be replaced by the property order already existing in the FGR, and on the other hand the individual claims for restitution of the land and enterprises taken by the GDR state or its Soviet predecessor had to be balanced against the claims that present occupiers of such land have to it. The influence of legislation and litigation connected to these issues on the development of Property Law is discussed. The final part of the exposition is a summary of the conclusions drawn during the course of the analysis.
AFRIKAANSE OPSOMMING: In 'n poging om in hierdie uiteensetting die bestaande (en tot onlangs nog oorheersende) privaatregtelike begrip "eiendom" te versoen met die breër eiendomsbegrip wat deur die nuwe grondwetlike bestel gepropageer word, word die grondhervormingsprogramme in Suid Afrika en Duitsland gebruik as voorbeelde van die wyse waarop die bestaande Eiendomsreg in beide regsisteme deur die wetgewer en die howe ontwikkel word. Die doel van die ondersoek is om vas te stel tot watter mate die grondwetlike ontwikkeling van privaatregtelike Eiendomsreg sal bydra tot die totstandkoming van 'n eiendomsregtelike regsorde waarin die sosio-ekonomiese en politieke doelwitte van ekonomiese groei en die vrye ontwikkeling en bemagtiging van die individu gedien word. Die klem word geplaas op die grondwetlike beskerming en regulering van eiendom as 'n meganisme waardeur die privaatregtelike Eiendomsreg in Duitsland en Suid- Afrika ontwikkel kan word. Die eerste deel van die uiteensetting begrond die keuse van regsvergelying as metode van analise en bespreek die terminologiese probleme wat in 'n ondersoek na die grondwetlike ontwikkeling van die privaatregtelike eiendomsreg kan opduik. Aandag word gegee aan die gebruik van begrippe wat verband hou met eiendom en publieke belang in sowel die privaatreg as in die grondwetlike konteks. Die gebruik van verskillende terme, veral in Engels, kan problematies wees, en daarom word dit breedvoeriger bespreek. In die tweede deel van die uiteensetting word die agtergrond waarteen die grondwetlike bestelle van Duitsland en Suid-Afrika funksioneer, bespreek: Eers word die formulering van die eiendomsklousules in Suid-Afrika en Duitsland vanuit 'n historiese perspektief ondersoek. In beide regsisteme is die grondwetlike eiendomsklousules op 'n kompromis tussen verskillende ideologieë gebaseer. Enersyds op klassieke liberalisme, in terme waarvan eienaars en ander reghebbendes 'n hoë mate van individuele vryheid en outonomie toegeken word; andersyds op sosiaal-demokratiese denke, in terme waarvan strenger regulerende maatreëls (ook op privaat eiendom) geduld moet word. Dan word sommige van die strukturele aspekte verbonde aan die grondwetlike beskerming en regulering van eiendom in Duitsland en Suid-Afrika bespreek. Die positief geformuleerde eiendomswaarborg in art 14 GG word vergelyk met die negatiewe formulering in art 25 FG en die positiewe waarborg in art 28 lG. Verder word die basiese struktuur en fases van 'n grondwetlike ondersoek in die beskerming en regulering van eiendom bespreek, met spesifieke verwysing na die verskille in die Duitse en Suid-Afrikaanse benaderings. Hierdie verskille is nie van so 'n aard dat dit regsvergelyking kortwiek nie. Nogtans is dit noodsaaklik dat die benaderingsverskille in ag geneem word vir 'n meer diepgaande vergelyking. Daarom word 'n vlugtige oorsig oor die rol van die howe in die hantering van eiendomsvraagstukke in grondwetlike konteks verskaf. Verder word die beginsels onderliggend aan die grondwetlike bestelle in Duitsland en Suid-Afrika bespreek met spesifieke verwysing na die betekenis daarvan vir die beskerming en regulering van eiendom. Daar word veral klem gelê op die regstaat- en sosiaalstaatbeginsels. Die legitimi teit van die regsorde in die algemeen, en meer spesifiek die Eiendomsreg, hang af van die mate van sukses waarmee hierdie beginsels in die gemeenskap geïmplementeer word. Daar word verder aangedui dat die toepassing van hierdie beginsels die mate van individuele vryheid in die uitoefening van eiendomsreg en/of die graad van regulering van eiendomsreg in 'n bepaalde regstelsel bepaal. Die derde deel van die uiteensetting konsentreer op die betekenis van die grondwetlike beskerming en regulering van eiendom vir die privaatregtelike Eiendomsreg. Die uitgebreide eiendomsbegrip wat in die grondwetlike konteks aangewend word, gee aanleiding tot die vraag na die sin van 'n voortgesette enger eiendomsbegrip in die privaatreg. Hierdie kwessie word bespreek met verwysing na die beskerming van eiendom in terme van die grondwet, en word vergelyk met die omvang van die eiendomsbegrip in die privaatreg. Daar word aangedui dat die sogenaamde uitsluitlik grondwetlike eiendomsbegrip geensins eksklusief aan die Grondwetlike Reg is nie. Die rol van die privaatregtelike eiendomsbegrip in 'n grondwetlike bestel word vervolgens uiteengesit. Verder word die beperkings op eiendom in die grondwetlike konteks geanaliseer. In beginsel is twee soorte beperkings regverdigbaar: (i) Beperking van eiendomsreg deur die vertikale aanwending van die grondwet, dit wil sê deur die breër kategorie wetgewende en administratiewe ontnemings (regulerings) van eiendomsreg en deur 'n enger en meer spesifieke kategorie, naamlik onteiening; en (ii) beperking van eiendomsreg deur horisontale aanwending van die grondwet, dit wil sê deur die inbreuk op eiendomsregte wat toegelaat word as gevolg van die uitwerking van die beskerming van ander regte in die Handves vir Menseregte. Daar word aangedui dat die vereiste van publieke belang in twee teenoorstaande opsigte gebruik word: Enersyds om die individuele belang bo dié van die gemeenskap te stel, en andersyds om die gemeenskap se belange as sulks te beskerm. Daar word ook aangedui dat grondwetlike "inmenging" met privaatregtelike eiendomsreg daarop gemik is om ongebalanseerdhede in die regsverhoudings tussen persone wat deur die reg as "gelykes" bejeën word en in effek nie gelyk is nie, uit te skakel. In die vierde deel van die uiteensetting word die grondhervormingsprogramrne in Duitsland (sedert hervereniging in 1990) en Suid-Afrika (sedert 1991) bespreek. Die klem val op die pogings van die wetgewer en howe om die verbeterde eiendomsbestel, soos wat dit in die grondwet in die vooruitsig gestel word, te konkretiseer. In beide regstelsels het politieke veranderinge 'n grondhervormingsprogram onontbeerlik gemaak: Die grondhervormingsprogram in Suid-Afrika het ten doelom die ongeregtighede in die grondbesitstelsel wat ontstaan het as gevolg van kolonialisme en apartheid uit te skakel. Vir dié doel berus die grondhervormingsprogram op drie verwante, maar uiteenlopende, beginsels. Die nuwe vorme van grondregte wat uit hierdie sisteem ontstaan, word aangedui, en die wyse waarop hierdie deel van die reg deur die howe hanteer word, word bespreek met verwysing na die betekenis daarvan vir die ontwikkeling van die Eiendomsreg. In Duitsland is die noodwendigheid van 'n grondhervormingsprogram aan die hervereniging van die DDR en die BRD gekoppel. Die sosialisties-georienteerde eiendomsbestel wat in die "oostelike" deel van Duitsland aanwending gevind het, moes vervang word deur die bestel wat reeds in die "westelike" deel van die "nuwe" staat in werking was. Verder moet die grondeise van persone wat grond of besigheidseiendom verloor het gedurende die sosialistiese regeringstyd en die voorafgaande Sowjetiese besetting, opgeweeg word teen die aansprake wat huidige besitters op sulke grond het. Die invloed van wetgewing en regspraak hieroor op die Eiendomsreg word geanaliseer. Die laaste deel van die uiteensetting bevat 'n samevatting van die gevolgtrekkings wat deur die loop van die analise gemaak is.

This dissertation constitutes a systems theoretical analysis of Anti-Money Laundering that dismisses the projected ideals of holism and delves into the core of Systems Theory (ST) in the tradition of second-order cybernetics. This theoretical approach of ST is appropriated in order to describe the domain of Anti-Money Laundering (AML) as a system in itself and at the same time examine the consequences that technology comes to play within the system of AML. While the contemporary phenomenon of AML has been reduced mostly into a set of technological consequences from profiling technologies (technologies that attempt within financial institutions to model and simulate money-laundering behaviour for the generation of suspicious transactions), this dissertation takes a different approach. Instead of focusing at profiling technologies that are believed to be the core technological artefacts that influence AML within financial institutions, this dissertation examines a variety of information systems and their interplay and describes through empirical findings the multitude of interactions that are technologically supported and that construct a much more complex picture of dealing with AML and thereby influencing how money-laundering is perceived. The empirical findings supporting the theoretical treatise come from a longitudinal case study of a Greek financial institution where a systematic examination takes place regarding a variety of information systems that may affect AML within the bank. Beyond isolated interferences of information systems to AML, their interrelations are further examined in order to reflect on the emergent complexity that often distorts cause-and-effect AML manipulations. The theoretical contributions put forward, constitute a systems theoretical application and an expansion of technological/systemic interferences, while the practical contributions to AML cover broader systems-theoretical reflections on the domain, technological integration within financial institutions for targeting ML, feedback relations between financial institutions and Financial Intelligence Units, as well as the systemic consequences for the newly implemented risk-based approach.

The aim of this research project is to conduct an evaluation on the implementation of gender mainstreaming in South African government departments, with specific reference to the Department of Justice and Constitutional Development (DoJ&CD) and the Department of Foreign Affairs (DFA). The research project is based on the hypothesis that despite the existence of a National Gender Machinery, Gender Focal Points (GFPs) face numerous challenges in implementing gender mainstreaming, due to various internal and external factors. Based on the two case studies, the research project concludes that despite a strong commitment from government, GFPs still face challenges in effectively implementing gender mainstreaming. This is due to a lack of accountability, an understanding of the concept of gender mainstreaming, as well as a lack of resources. Furthermore, systemic weaknesses within the National Gender Machinery are exacerbating the challenges faced GFP

The study is located within the broad framework of the sociology of education, specifically drawing on Bernstein's sociological theory of education and its application in the investigation of the relations between pedagogy and social justice. The specific problematic within which my study is located is the constitution of school mathematics in the pedagogic situations of schooling.

Primauté absolue du droit de l’UE ou suprématie des dispositions constitutionnelles ? Consacrée à l’analyse des conflits nés ou à naître entre normes constitutionnelle et celles du droit de l’UE, cette étude doctorale s’est focalisée sur l’analyse du lien entre les termes primauté et recours pour relever que dans ce genre de litiges contentieux un syllogisme juridique inédit est appliqué. Il s’agit de celui qui préserve cumulativement le critère hiérarchique caractérisant les ordres juridiques internes des États membres, à son sommet le principe de suprématie des dispositions constitutionnelles sur toutes les autres et l’application effective de la primauté matérielle du droit de l’Union ; les évolutions récentes du droit interne de l’UE convergent toutes dans ce sens : dans le cadre d’un litige contentieux, la primauté n’est plus une problématique de légalité constitutionnelle, le conflit est contourné. En la matière, les débats sur l’autorité et la force du droit international classique sur le droit constitutionnel ne se pose plus. Il a été séparé entre la force et l’effet des traités du droit international de l’Union. Pourtant sur le plan des principes, même au sein d’un État fédéral, le contenu définitionnel et surtout le maniement du texte constitutionnel n’ont pas été revisités ; la Constitution est le fondement sans être le contenu de validité de la primauté du droit de l’Union, le texte suprême opère en tant que technique de renvoi, il cadre deux types de champs en fonction du critère de l’objet du litige contentieux. Suprématie et primauté sont deux principes de nature juridique différente qui ne s’affrontent pas. La prévalence de la primauté matérielle du droit de l’Union n’affecte nullement la suprématie au sommet de la hiérarchie pyramidale des normes de chacun des États adhérents
Absolute primacy of Community law or supremacy of constitutional provisions ? Devoted to the analysis of the conflicts born or to be born between EU law and constitutional standards, this doctoral study focused on analysis of the link between the terms of primacy or preemption rule and jurisdictional actions to raise that in this kind of litigation disputes a unreported legal syllogism is applied. It's one that cumulatively preserves the hierarchical criterion characterizing the domestic legal systems of the Member States, at its peak the principle of supremacy of the Constitution over all others and the effective application of the material primacy of Union law ; recent developments in internal law of the Union converge in this sense : in a dispute litigation, primacy is no longer a problem of constitutional legality, the conflict is circumvent. Concerning this matter, the debate on the authority and the force of traditional international law on constitutional law no longer arises. It has been separated between the force and the effect of the treaties of international law of the Union. Yet in terms of principles, even within a federal State, the definitional content and especially the handling of the constitutional text have not been revisited ; the Constitution is the legal basis without being the content validity of the primacy of Union law, the supreme text operates as a reference technique, it fits two types of fields based on the criterion of the contentious issue. Supremacy and rule are two different legal nature principles which do not compete. The prevalence of the material primacy of Union law sets no supremacy at the top of the pyramidal hierarchy of standards of each of the acceding States

碩士
淡江大學
日本研究所
84
A country''s trend of thoughts and level of legalprotection on human rights can be better realized by observing how it protects the rights of aliens residing within its,territory, and the more advancing the country, the higher the ratio the alien residents there is. In the past few years, our country has been trying to be internationalzed in every respects. And the economic development is accordingly very rapid and impressive. The number of aliens has increased tremendousiy after foreign labors were allowed to be imported since several years ago.For those aliens, the problem of human rights has been often ignored, and incidents against which have also frequently seen on media reports. In order to better handle the human-right problems of the aliens residing here in the future,the ways and methods of how our neighboring state,Japan, treats its domestic aliens and their consequences should be observed and studied. The aliens'' human-right problems were used to be governed by private internal or domestic laws. Due to the increasing importance and internationalization of the human-right protection,however, that issue today seems need to be raised to anothed dimension, i.e., the dimension of constitution and international laws. This thesis,therefore, by using the theories of constitutional protection on human right as well as relevant international legal rules, tries to study he scope and limitation on alien'' human-right protection under the Japanese Constitution, and whether in reality the protection rendered by Japan comples with the established legal principles. The main purposes of this thesis are trying to identify the issues of the problem as well as their proper solutions. The research methods em- ployed are historical method and documentation analysis. The thesis has five chapters, totaled eighty thousand Chinse Characters.

博士
國立臺灣大學
國家發展研究所
94
Peace is what people''s always longing for, nevertheless, the state of war and the state of peace are in constant alternation during human''s history. Therefore, to build a world of peace free from war is an ideal for man. Knowing that people insist on the importance of peace consciousness, however, the peace consciousness could it just be a "myth" after all ? Is there any possibility of making the pacifism eventually come true ? Could peace become a part of human rights ? The fact is that the cross-strait relations have been deteriorated due to the set-up of China''s anti-secession law ; some controversial issues have become a source of conflicts in the Congress - such as arms procurement or the peace promotion law ; moreover, it exists certain complicated historical factors in Taiwan. All the issues mentioned above show up the complexity of the cross-strait issue and of the national security. As we know, the majority of people want to keep the peace they enjoy now, so to settle disputes via peaceful way instead of making war, and to build up a framework of peace for Taiwan’s future have become the most concerned issues. Meanwhile, the international community tends to embrace peace, that is to say peace has become the ultimate goal of mankind. The author here tries to use the notion of peace as the base of discussion, then extends the discussion to the sprit as well as the practice of the Article 9 of Japan’s Constitution, to see if there’s any possibility of making and applying a peace constitution in Taiwan, and to clarify some related issues of pacifism. To develop the up-coming dissertation, the author would like to use the following sub-titles : (1) The theory and philosophical fundament of peace. (2) The interaction between peace, constitution and human rights – the derivative of the right to live in peace. (3) The practice of peace and democracy - Article 9 of Japan''s Constitution as a reference. (4) The practice of peace theory in our country and its way – the possibility of making a peace constitution.

This study analyzes the rule of the law of treaties permitting the provisional application of treaties or parts thereof, which usually occurs between signature and ratification (article 25 of the 1969 Vienna Convention). Chapter 1 reviews the negotiating record of article 25. Chapter 2 examines the reasons for provisional application, which include the urgency of the treaty and preparation for a new international organization. Chapter 3 considers article 25 in detail, while chapter 4 explores provisional application under customary international law, including the origins of the custom. The constitutionality of provisional application and the municipal effect of provisionally applied treaties are examined in chapter 5, along with provisional application in South African law and treaty practice. Chapter 6 considers the special role of provisional application in the field of arms control instruments. The main conclusion reached is that the principle of pacta sunt servanda applies during the provisional period.
Jurisprudence
LL.M

The Employment Equity Act, No 55 of 1998 forms part of the transformation legislation aimed at promoting equity and eliminating discriminatory and unfair treatment in the workplace. This Act was promulgated more than ten years ago, and its positive impact has to be measured in terms of its contribution to the conduciveness of the work environment. The aim of this study is to enhance measures for effective implementation of an Employment Equity Programme (EEP) in the Public Service, with specific reference to the Department of Justice and Constitutional Development. The ultimate aim is to identify Employment Equity (EE) measures that will benefit management and employees in enhancing individual performance and productivity. The study focuses on perceptions of employees on how they perceive EEP. As the study progressed it became equally important to determine the alignment and contribution of EEP on Departmental strategic objectives. The results and recommendations will be shared with the Department of Justice and Constitutional Development with a view to ensuring that its EEP is aligned to its strategic objectives, and adds value to service delivery.
Public Administration & Management
M.P.A.

This study takes an in depth look at the constitutional and legislative changes that led to the development of labour laws and the subsequent implementation of affirmative action measures in South Africa. The central question of this study is to investigate whether affirmative action is reverse discrimination or another form of apartheid in disguise as viewed by the white community. The study reveals that though the Employment Equity Act intends to achieve equality in the workforce, through the implementation of affirmative action measures, however, the policy should not be implemented in such a manner as to have a negative impact on the non-protected group such as the white population. Despite the identification of other ills, which include the neglect of women and wage differentials between men and women, South Africa has made remarkable achievements and leaves a lasting legacy of fair racial representation in the workplace through the implementation of affirmative action measures.
Thesis (M. (Law) North-West University, Mafikeng Campus, 2011

It is common knowledge that owing to their particular vulnerability children worldwide falls prey to physical and/or sexual violence in the home and/or community or witness criminal acts. Consequently children are called upon to testify in a court of law to cruelties or acts of violence. As a result of their developmental shortcomings and immaturity, children find the criminal justice system extremely intimidating and challenging. The importance of realising a justice system that not only affords an accused person the right to a fair trial but also protects and safeguards the rights of the child victims of and witnesses to the crime is thus indisputable. The purpose of this research was therefore to assist the South African criminal justice system in its on-going challenge to find a balance between the right of the accused person to a fair trial and the protection and safeguarding of the rights of child victims and child witnesses. The protection and safeguarding of the rights of child victims and child witnesses in terms of the South African Constitution, applicable domestic law and international instruments relating thereto were extensively discussed and shortcomings identified. Possible solutions to ensure that child witnesses and child victims are adequately protected and supported during the trial stage of the criminal process were advanced. Particular emphasis was placed on the role of an intermediary in assisting child victims and child witnesses during the court process. Comparative research on the protection of child victims and child witnesses in the criminal justice systems of New Zealand and Namibia were also conducted. Conclusions drawn from comparative studies were used to recommend appropriate changes to the current system. It is submitted that the adequate protection and safeguarding of the rights of child victims and child witnesses are dependent not only on sound legal principles but also on governmental and other involved stakeholders’ commitment toward the realisation of these rights. In order to give proper effect to the protection and safeguarding of child victims’ and child witnesses’ rights, it is proposed that the recommendations made throughout this study should be adopted and implemented. In this regard the role of an intermediary is crucial and the use of intermediaries should be promoted.
Private Law
LL.D.

This study evaluates the court's approach towards the interpretation of administrative justice with specific reference to Roman v Williams 1997(2) SACR 754(C). Section 33 of the Constitution Act 108 of 1996 guarantees the right to administration justice. The elements of this right are lawfulness, reasonableness and procedurally fairness. Our courts are bound constitutionally to promote, develop, advance and protect the fundamental rights. This study provides the most effective approach towards the development of the fundamental right in our democratic society where the Bill of Rights binds legislature, executive and judiciary.
Administrative Law
LL.M. (Administrative Law)

This study forms a unique study of South African diamond laws as developed in the context of the South African constitutional dispensation. This study is therefore a contribution to legal research and academia which forms an in depth consideration of international trade practices that influence the diamond industry which is used in this study specifically as a sample market. The diamond industry in South Africa provides a relatively comparatively small but resilient source of economic activity through trade in diamond products as luxury items and items used for industrial purposes. It is therefore crucial that laws related to the regulation of this industry are comprehensively and analytically studied for the purposes of understanding South African national and international diamond trade regulatory framework. This is done with the aim of illustrating that there has been a significant shift of prevailing wisdom in the South African diamond trade industry. It is now evident that more constitutionally justifiable and internationally sound diamond trade practices have been adopted and applied. This study not only serves to benefit South Africa as a diamond producing country but it will also add required knowledge related to the international trade context particularly having regard to the fact that South Africa plays a significant role in the global economy and its diamond trading activities do not occur in a vacuum. Therefore the international trade aspect of this study lends it a dual purpose analysis of diamond regulation laws. 1 Report of Task Team Appointed by the Minister of Minerals & Energy to Analyze the Memoranda and Evidence Laid Before The Commission of Inquiry into the South African Diamond Industry, 20 December (1999). Chapter 5. This was stated in the submissions by Mr. L.A. Lincon, a director of De Beers. He stated that South Africa had 10% by volume of the world total of around 105 million carats. South African mines are no longer major producers of all desired qualities. As a result it was agreed in 1992 that rough diamonds destined for South African factories could be provided from the CSO’s (Central Selling Organization) full range of diamonds available in London from sources world-wide.
Thesis (LL.D.)-University of KwaZulu-Natal, Durban, 2009.

This Doctoral thesis entitled the Constitutionality of Employers' Investigative Procedures and Disciplinary Hearing Processes with Specific Reference to Dismissal of Employees on the Basis of Criminal Misconducts in South Africa, focusses on individual labour law principles of fair labour practices entrenched in section 23(1) of the Constitution. The thesis deals with fairness in situation where an employee who is suspected of committing a criminal act is investigated and subsequently goes through a disciplinary hearing for dismissal. It determines the extent to which an employee’s criminal guilt is decided before dismissal. As such, the thesis is based upon South African judicial interpretation of the right to fair dismissal. In the process the thesis examines the application of principles informing the employer’s duty to provide fair reason concerning the dismissal of employees criminal suspects. In examining if employers observe constitutional transformative objective when conducting criminal investigations and disciplinary hearings - the thesis reviews the extent to which the employer respects constitutional rationales of equity based on the principles of natural justice. These natural justice principles are the basis upon which section 23(1) fairness is founded. Section 23 (1) is implemented through the LRA provisions. The thesis then concludes that, only one principle of natural justice - audi alteram partem is respected within employer flexibility-based fairness while the other principle - nemo judex in propria sua causa is ignored. It is this denial that causes serious procedural challenges in the quest for equity intended in section 23(1) fair labour practices. It is upon these foundational equity concerns that this thesis opposes the flexibility in employer’s criminal investigations and disciplinary hearing processes entrenched in item 4 (1) of Schedule 8 of the LRA fair procedure for dismissal of employees suspected of criminal acts. The thesis interlinks labour law and criminal law to advocate for the missing constitutionally justiciable fairness for employees who have committed criminal misconducts. It argues that the current judicial interpretation of labour law fairness is based upon the principle of flexibility underlying dismissals, asserting that fairness based on flexibility breeds informal procedural processes which exempt employers from observing crucial constitutional fairness principles expressed through proportionality-based prescripts. The thesis concludes that the practice of including the right against self-incrimination in employment law, done in other common law countries be introduced into the South African labour law through section 39 of the Constitution so that the identified procedural challenges are regulated.
Mercantile Law
LL.D.

This study deals with the administrative and curricular development of Indian teacher education in South Africa for the period 1860 - 1984. It is set against the background of developments in the education system for Indians in this country. Historical and political events which have a direct bearing on Indian education are touched upon merely cursorily to give the reader the necessary background for a fuller appreciation of the Indian community's struggle for education in the country of their adoption. The study is divided into three parts. Part one comprising the first two chapters, provides a brief historical perspective of Indian education from 1860 to 1965. Chapter One deals with a brief review of the coming of the Indians to Natal and the origins and early development of education for the Indians. Chapter Two carries on the historical review with the emphasis on the early development of Indian teacher education. Part Two comprising four chapters deals with aspects of Indian education after it was transferred from provincial control to central State control in 1966. The Indian Education Act of 1965 (No. 61 of 1965) is taken as a point of departure. Chapter Three begins with a very brief discussion of the principles underlying the nationalisation of education in South Africa. The de Lange Report and the Government's reaction to its recommendations are considered against the new political dispensation. Chapter Four deals with such aspects as control and administration, involvement of Indians in the control of their education, school accommodation, growth in pupil enrolment and the school curricula are examined to assess growth and progress. Chapter Five is concerned with the control and administration of Indian teacher education after nationalisation of Indian education. Within the framework of this chapter recent developments such as the recommendations of the Gericke Commission leading to the National Education Policy Amendment Act (No. 75 of 1969) and the van Wyke de Vries Commission's recommendations for a closer co-operation with universities in respect of teacher education, are examined with a view to tracing their influence on Indian teacher education. Chapter Six attempts to examine demographic aspects which influence the demand for and supply of teachers in Indian education. Part Three comprising four chapters, examines contemporary issues and perspectives in Indian teacher education. Chapters Seven and Eight examine critically the teachers' courses at the Colleges of Education and the University of Durban-Westville respectively. Chapter Nine examines on a comparative basis structural changes and new developments in methodological skills in teacher education. Finally, in Chapter Ten proposals and recommendations are formulated with a view to achieving a properly structured institutional arrangement such as the college council and college senate to facilitate Indian teacher education.
Thesis (Ph.D.) - University of Natal, Pietermaritzburg, 1985.

Dissertação de mestrado em Direito da União Europeia
O presente trabalho buscará efetuar uma investigação relativa ao mandado de injunção e ao reenvio prejudicial enquanto mecanismos que (podem atuar) como operativos de um controle de constitucionalidade e que poderão ter a virtualidade de possibilitar uma maior participação democrática no contexto jurisdicional brasileiro e da União Europeia. A pesquisa se insere na área de concentração do PPGD da UNISC, na linha de pesquisa do Constitucionalismo Contemporâneo, assim como das pesquisas realizadas na Uminho no mestrado em Direito da União Europeia, mais especificamente na linha de Investigação “Estudos em Direito da União Europeia”. Esta se estenderá até a análise da forma como ambos os mecanismos contribuem, ou podem contribuir, para o alargamento e defesa da democracia, na sua dimensão material, relacionada com a efetivação dos direitos fundamentais em cada contexto. Assim, o problema da pesquisa se concentrará nos seguintes questionamentos: 1) O mandado de injunção e o reenvio prejudicial funcionam eficientemente como mecanismos de fiscalização da constitucionalidade? Do mesmo modo, podem eles laborar materialmente como garantidores de direitos fundamentais proclamados em cada uma das ordens jurídicas chamadas à colação? 2) tais mecanismos servem como instrumentos tendentes ao aprofundamento do exercício democrático? A hipótese a ser trabalhada nesta pesquisa está assente na ideia de que, enquanto o reenvio prejudicial funciona como um mecanismo essencial para o exercício de algum controle de constitucionalidade a nível da União, nomeadamente em termos de fiscalização concreta, incidental e difusa, através do controle de validade que possibilita, contribuindo ainda para o estabelecimento de um judicial review sui generis, o mandado de injunção, em especial pela forma como foi tratado pelo legislativo e pelos posicionamentos adotados pelos tribunais, vai em sentido contrário, ou ao menos, não tem alcançado os mesmos êxitos que o reenvio prejudicial. No mesmo sentido, se buscará delinear os contornos que ambos os institutos possuem em seus ordenamentos jurídicos, de forma a demonstrar a capacidade que têm, ou poderiam ter, enquanto viabilizadores de uma participação democrática por meio da busca pela efetivação de direitos e garantias fundamentais trazidas pelos respetivos textos constitucionais que se encontram nas duas latitudes em apreço. Para responder aos questionamentos delineados na presente pesquisa, será utilizado o método hipotéticodedutivo, bem como utiliza-se o método de procedimento monográfico, pois disserta-se minuciosamente a respeito do tema eleito. Finalmente, emprega-se a técnica de pesquisa bibliográfica pela documentação indireta, pela qual se buscam elementos para a investigação do tema em livros especializados, em artigos científicos constantes de revistas jurídicas e no normativo pátrio e europeu. Os resultados apontam que o mandado de injunção não tem servido aos fins originalmente traçados, bem como pouco tem auxiliado os brasileiros na busca e efetivação de direitos fundamentais e no alargamento da participação democrática, já o reenvio prejudicial, mesmo com algumas amarras e dentro de algumas limitações, tem servido bem como mecanismo de controle abstrato de constitucionalidade, e possibilitado, ainda que indiretamente, que os cidadãos europeus participem do jogo democrático a nível da União.
The present work will seek to investigate the injunction and the reference for a preliminary ruling as mechanisms that (may act) as operatives of a constitutional control and which may have the potential to allow greater democratic participation in the Brazilian and European Union jurisdictional context. The research is related to the concentration area of the PPGD of UNISC, in the research line of Contemporary Constitutionalism of the program, as well as the research carried out at Uminho in the European Union Law Master, more specifically in the Research in Studies in European Union law. The research extends to an analysis of how the two factors contribute, or contribute, to the increase and defense of democracy, in its material dimension, with the realization of fundamental rights in each context. Thus, the research problem focuses on the following questions: 1) Do the injunction and the reference for a preliminary ruling function effectively as mechanisms for reviewing constitutionality? Likewise, they may laboring materially as guarantors of fundamental rights proclaimed in each of the jurisdictions called into play? 2) Do these mechanisms serve as instruments to deepen the democratic exercise? The hypothesis to be worked on in this research is based on the idea that, while preliminary ruling acts as an essential mechanism for the exercise of some constitutionality control at Union level, namely in terms of concrete, incidental and diffuse supervision through of validity that makes it possible, contributing to the establishment of a judicial review sui generis, the injunction, especially for the way it was treated by the legislature and the positions adopted by the Courts, goes in the opposite direction, or at least it achieved the same success as the preliminary reference. Similarly, it will seek to outline the contours that both institutions have in their legal systems, in order to demonstrate the ability they have, or could have, as enablers of democratic participation by seeking the enforcement of rights and guarantees brought by the respective constitutional texts that are in the two latitudes under consideration. To answer the questions outlined in this research, the hypothetical-deductive method will be used, as well as the method of monographic procedure, because it is thoroughly discussed about the chosen theme. Finally, we use the technique of bibliographical research through indirect documentation, which seeks elements for the investigation of the theme in specialized books, scientific articles in legal journals and in the national and European regulations. The results indicate that the injunction has not served the originally intended purposes, as well as has not helped the Brazilians in the search and implementation of fundamental rights and in the broadening of democratic participation, while the preliminary references, even with some strings attached and within. Some limitations have served well as a mechanism for abstract control of constitutionality and have enabled, albeit indirectly, European citizens to participate in the democratic game at Union level.

This study examines the effectiveness of environmental and developmental rights within the SADC region, especially the status of their implementation and enforcement in the DRC and the RSA. The SADC Treaty recognizes implicitly the rights to environment and to development. Unfortunately, the unequivocal commitment to deal with human rights within the region is not translated with equal force into the normative framework established by the Treaty or into SADC’s programmed activities. No institution has been established with the specific mandate to deal with human rights issues, neither are there any protocols or sectors especially entrusted with human rights protection and promotion. The SADC member States do not share the same understanding or agenda on matters pertaining to the respect for, and the promotion, protection and the fulfilment, of human rights at the regional level. The inception of environmental and developmental rights within the Constitution of the DRC is still in its infancy compared to the situation in South Africa. Implementation and enforcement remain poor and need important support from all organs of state and from the Congolese citizens. A strong regulatory framework pertaining to human rights (environmental and developmental rights) remains an urgent issue. Guidance may be found in the South African model for the implementation and enforcement of human rights, although the realization of the right to environment in South Africa is hampered by a number of factors that cause the degradation of the environment. Against South Africa’s socio-economic and political background, the constitutionalization of the right to development remains of critical concern to a sustainable future for all. The Congolese and South African peoples need to be made aware of their constitutional rights, especially their environmental and development rights, and the institutions and the mechanisms available to enforce them. They need to be empowered to demand justice as a right not as an act of charity. It is patently clear that the authorities will not protect the environment or tackle the development agenda unless there is a strong people’s movement to challenge the State and other role players over environmental and development issues and ethics.
Constitutional, International & Indigenous Law
LL.D.

South Africa has had a free mandate theory of representation up to 1994. From 1994 to 2002 an imperative theory applied and in 2003 a limited hybrid free mandate was introduced. The origin of parliament, the development of representation as a concept in Public Law and the birth of political parties are studied. It is shown that parliament and representation were natural developments that occurred at the same time, not by grand design, but by chance. It is also shown that political parties appeared first as informal intra-parliamentary groupings that developed into extra-parliamentary organisations, organised to achieve and exercise power in the political system as the franchise became more liberal. The factors that influence a member's mandate and floor-crossing as such are discussed. Finally it is concluded that from a legal historical perspective, a free mandate of representation is the preferred theory of representation in public law.
Jurisprudence
LL.M. (Public Law)