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1
McLachlan, Campbell Alan. "State recognition of customary law in the South Pacific." Thesis, University College London (University of London), 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.285211.
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Mwambene, Lea. "Divorce in matrilineal customary law marriage in Malawi: a comparative analysis with the patrilineal customary law marriage in South Africa." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&.
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This research aimed to undertake an investigation into the question of whether after divorce, in the matrilineal customary law marriage in Malawi, women's rights are severely violated. The study showed causes of divorce, how proceedings are done, how issues of property are handled, how the issue of custody of children and maintenance are also handled. All this was weighed against the constitutional provisions and international law.
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Teny, Jamual Peter Malual. "Comparing child justice legislation in South Africa and South Sudan." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1020941.
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The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.
4
Weeks, Sindiso Mnisi. "The interface between living customary law(s) of succession and South African state law." Thesis, University of Oxford, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669981.
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Mqeke, Bangilizwe Richman. "Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei." Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1003202.
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In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.
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Osman, Fatima. "The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa." Doctoral thesis, Faculty of Law, 2019. http://hdl.handle.net/11427/30791.
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After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.
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Minja, Tumaini. "Dealing with a buried past : the relevance of customary reconciliation to bottom-up transitional justice in South Sudan." Thesis, University of York, 2013. http://etheses.whiterose.ac.uk/4853/.
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In the last two decades of the war between the north and South Sudan, which ended with the signing of the Comprehensive Peace Agreement (CPA) in 2005, ethnic identities were manipulated leading to a second tier of wars involving southerners - ‘the south-south wars’. When the wars escalated, they added significantly to the cumulative death toll, with both victims and perpetrators being southerners. Despite the commission of widespread, grave crimes in the wars, justice was excluded in the CPA process through amnesty, with a view to facilitating the transition. This study explores the relevance of customary reconciliation in South Sudan for promoting Transitional Justice (‘TJ’) in the country. The study is premised on the need to achieve a balance between the imperative of TJ for the ‘south-south wars’ and the need for peace in the country. It argues that post-CPA conflicts are, to great extent, by-products of the legacies of the wars and as such, the same communities are the most affected. Based on the conceptual understandings of bottom-up TJ, the study utilizes ethnographical tools to explore the customary reconciliation practices of the Dinka, Nuer and Zande, the three largest groups in the country. The validity of the findings is enhanced by the use of triangulation and grounded theory. The primary finding is that in the absence of formal official interventions, customary reconciliation has the potential to promote bottom-up TJ as a tool for reparation, reintegration, truth telling, healing, etc. The study argues that a combination of modern methods and customary reconciliation could be utilized to mitigate the limitations of customary reconciliation. Towards enhancing TJ intervention, the study argues for an increased focus on cultural perspectives relevant to TJ as this could, among other benefits, mitigate the competing interests of peace and justice.
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Sunde, Jacqueline. "Customary governance and expressions of living customary law at Dwesa-Cwebe: contributions to small-scale fisheries governance in South Africa." Doctoral thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/13275.
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Includes bibliographical references.Customary systems of marine resource governance have gained increasing attention internationally in the past three decades. Notwithstanding this, and despite the Constitutional recognition of customary governance and customary law in South Africa, the post-apartheid legislative reforms in the fisheries sector have failed to recognise customary systems of marine resource governance. Drawing on a case-study of the Dwesa-Cwebe community in the Eastern Cape, South Africa, this research aimed to describe and understand the customary marine resource governance system of this community and its relationship to living customary law. It explores how this customary system of marine resource governance has interfaced with statutory and other systems of law in the past and how it continues to develop in the current context. The findings from this research highlight the distinctive nature of the customary system of marine resource governance practiced by the community of Dwesa-Cwebe and their expressions of living customary law embedded in this governance system. The nature of this system is foundationally different to that of a Western statutory governance system. This customary system of governance has interacted with the statutory system for over a century, in part distorted by this system but retaining its integrity. In the context of the Constitutional recognition of customary systems of governance and customary law, this governance system now requires understanding and recognition in a new system of marine resource governance in South Africa. This thesis explores the contribution that this system of customary governance can make towards promoting socially just smallscale fisheries in South Africa. It argues that harmonisation of the statutory and customary system of marine resource governance demands an approach to governance theory and practice that is able to imagine an alternative ‘ecology of governance’.
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Mwambene, Lea. "The impact of the Bill of Rights on African customary family laws : a study of the rights of women in Malawi with some reference to tevelopments in South Africa /." Online Access, 2008. http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_8528_1271625878.pdf.
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Mashalaba, Siyabulela Welcome. "Discrimination against women under customary law in South Africa with reference to inheritance and succession." Thesis, University of Fort Hare, 2012. http://hdl.handle.net/10353/505.
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In South Africa, it is evident that women are uniformed of their essential human rights, especially their inheritance and succession rights, including protection of such rights. Human rights are international norms that protect individuals everywhere from the states’ political, legal and social abuse. Human rights are entitlements which human beings have in order to enhance their human condition. They are the fundamental entitlements or minimum standards to be met for individual so that they live with dignity. This study focused on discrimination of women under customary law in South Africa with reference to inheritance and succession. The study validated the findings of other researchers on the impact of cultural practices on women’s rights to inheritance and succession. In addition the findings revealed that efforts t eliminate traditional practices, should foremost come from men and from communities that hold such destructive attitudes towards women. The outcomes and recommendations of this study would assist the government and other institutions to adopt effective measures to empower women and especially educate them so that they can assert and defend their human rights
11
Kamieth, Alexander. "The traditional Leadership and Governance Framework Act, 2003, and its subsequent provincial legislation: a critical review of attempts at integrating traditional leadership into the new democracy in South Africa." Thesis, University of the Western Cape, 2007. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_8199_1256293513.
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The subject of this research paper is the analysis of the recent national and provincial legislation on traditional leadership. Within the new constitutional dispensation the legislature had to retain traditional leadership pursuan to Chapter 12 of the Consstitution of the Republic of South Africa, 1996. It was unclear how to change institutions that are based on customary
aw at the same time, recognize them as they are. The legislative branch of government provided its answer through the national and provincial Acts. Precisely the answer forms part of the research paper.
12
Costa, Anthony Alec. "Segregation, customary law and the governance of Africans in South Africa, c.1919-1929." Thesis, University of Cambridge, 1999. https://www.repository.cam.ac.uk/handle/1810/272699.
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Zimuto, Prince Charles. "An analysis of "self-determination" in international law : the case of South Sudan." Thesis, University of Fort Hare, 2015. http://hdl.handle.net/10353/5697.
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This research intends to investigate the scope and applicability of the concept of ‘self-determination’ outside the context of decolonisation using South Sudan as a case study. Demands for the exercise of the right to self-determination are widespread. These are vehemently resisted by states who view the concept of ‘self-determination’ as a potential source of territorial disintegration. International instruments which provide for the right to self-determination also discourage the impairment of the territorial integrity of states in the name of self-determination. The problem faced in international law is therefore how to balance the right to self-determination with the principle of territorial integrity. The study reveals that the general understanding is that outside the context of decolonisation the right to self-determination may be exercised within the territorial boundaries of a state without compromising the territorial integrity of a state. The internal exercise of the right to self-determination entails human rights protection, participation in the political affairs of the state and autonomy arrangements. This general understanding is however problematic where a state systemically violates the rights of its people and denies them political participation in the affairs of the state. The people of South Sudan found themselves in such a situation from the time when Sudan gained independence from British colonial rule. Despite a number of negotiations with the government of Sudan, the people of South Sudan continued to be marginalised and their rights violated with impunity. They then demanded to exercise their right to self-determination externally and eventually they seceded from Sudan through the framework created by the Comprehensive Peace Agreement of 2005. In the light of the secession of South Sudan from Sudan this study proposes a remedial self-determination approach to the understanding of post-colonial self-determination. In terms of this approach when people are denied the right to exercise their right to self-determination internally, or their rights are deliberately and systemically violated, they may exercise their right to self-determination externally and secede.
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Amoah, Jewel Dee Afua. "Constructing equality: developing an intersectionality analysis to achieve equality rights for the girl child subject to South African customary law." Doctoral thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20357.
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Equality, an ideal that like should be treated alike, lies at the heart of most national constitutions and all international human rights instruments. Despite its ancient origins, however, this principle is far from being achieved in practice. Hence, in the search for full substantive equality, critical legal scholars put forward a theory and accompanying analytical framework of intersectionality. Using South Africa as an example, this thesis examines the realisation of the constitutional promise of equality for those who have been traditionally marginalised by reason of their intersecting race and gender identities. The process of navigating this identity intersection is complicated by the cultural diversity that is a feature of South African society. The Constitution nevertheless, encourages such diversity, and goes even further to give equal recognition to the coexisting systems of common and customary law that are rooted in Western and post-colonial African cultures, respectively. It follows that a full understanding of the different legal and social contexts in which a rights claimant lives is critical to the achievement of substantive equality.
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Hugh, Brian Ashwell. "Traditional leadership in South Africa: a critical evaluation of the constitutional recognition of customary law and traditional leadership." Thesis, University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&.
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The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.
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Klose, Simon. "Does the right to culture entail a right to gender discrimination? : the position of women in South African customary law." Thesis, Stockholms universitet, Juridiska institutionen, 2001. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-147416.
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Badejogbin, Rebecca Emiene. "An analysis of the process of ascertainment and application of customary law in the formal institutions of adjudication: Nigeria and South Africa." Thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/28996.
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Judges of formal courts in Nigeria and South Africa do not easily have access to the contents of customary law they are required to apply in the course of adjudication and this has been a major challenge. This thesis examines the processes that courts adopt in the ascertainment and application of living customary law in Nigeria and South Africa in order to discover factors that influence the ascertainment and application of customary law. This research is qualitative in nature and utilises both doctrinal and empirical methods to make its findings. It examines the conceptualization of customary law in the context of the research against positivist and pluralist theories and analyses the doctrine of judicial discretion against relevant theories on how it impacts on the ascertainment and application process. The thesis also examines the current laws and procedures that regulate this exercise to discover how it contributes to what is ascertained by the court. For its primary sources, it utilised data obtained from the semistructured interviews conducted, and, records of proceedings of cases on customary law heard by the formal courts in Nigeria and South Africa within a fifteen-year period. The secondary and tertiary sources utilised include text books, journal articles, official reports and publications, and other literature. It identifies factors within the purview of institutional, substantive, procedural, socio-economic and political factors, as well as other factors that influence how judges exercise discretion in the ascertainment and application of living customary law. The thesis states that these factors contribute in varying degrees, to enhance or impede the ascertainment and application of living customary law by these formal courts. It therefore proposes the consideration of these factors in the policies that seek to develop measures that would enhance the ascertainment and application of living customary law by the formal courts in Nigeria and South Africa.
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Mbete, Asanda Nodolly. "Evaluating the impact on the girl child through the criminal activities associated with the practice of ukuthwala." University of the Western Cape, 2020. http://hdl.handle.net/11394/7323.
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Magister Philosophiae - MPhilUkuthwala is an ancient cultural practice that has been exercised in various parts of South Africa, especially in the Eastern Cape. It occurs in different communities and is informed by traditional beliefs. The man’s family devises a plan to bring the girl to their compound without her knowledge. In some instances, this plan is formulated together with the girl’s family, but when the man’s family acts without the prior knowledge of the girl’s family, they are obligated to inform them by means of a letter, or by delegating a family member, that their daughter is not missing. Furthermore, the man’s family will request a day with the girl’s family for lobolo (dowry) negotiations for the girl. The girl’s family will oversee the process of ukuthwala to ensure that all the requirements are met and that there is mutual understanding between the families; however, this is done without the involvement of the girl child (Mjwara, 2014).
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Samukimba, Jill Chidisha. "Exploring the influence of intlawulo on father Involvement among Xhosa speaking black South African fathers raised and living in Cape Town." Master's thesis, Faculty of Humanities, 2020. http://hdl.handle.net/11427/32344.
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Studies on African fatherhood represent African fathers as problematic and in South Africa, they are identified as ‘‘emotionally disengaged, physically absent, abusive and do not pay for their children's upkeep'' (Morrell & Ritcher, 2006:81). Many studies link the high rates of absent fathers to poverty and irresponsibility. Such literature is devoid of cultural factors that might be contributing to the high rates of absent fathers in most African communities. Across Southern Africa, intlawulo, a customary practice that involves the paying of a fine by a man responsible for impregnating a woman out of wedlock and his family to the pregnant woman's family. Historically, intlawulo served as a critical means of regulating and mediating unmarried fathers' involvement in their children's lives. Therefore, this explorative qualitative research project explores African fathers' experiences of intlawulo and its subsequent links to father involvement. To gauge their experiences and interpretation of intlawulo and father involvement, I conducted face-to-face in-depth qualitative interviews with a purposive sample of 8 black Xhosa speaking South African fathers from Cape Town who have gone through the intlawulo negotiations for the past five years or less. This study aimed to explore how the customary practice of intlawulo or ‘paying damages' influences a father's involvement in his child's life in Khayelitsha, an urban township within Cape Town. It argued that the payment of intlawulo regulates a father's involvement in childrearing, his interaction with and access to his child. In contrast to how fathering has been described in previous literature, this thesis argues that becoming a father is a process and intlawulo is the entry point where it can be denied, stopped and negotiated.
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Qomfo, Athenkosi. "The role of land reform in addressing women empowerment in the rural communal area of Nqandu, Eastern Cape, South Africa." University of Western Cape, 2020. http://hdl.handle.net/11394/7386.
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Magister Artium (Development Studies) - MA(DVS)Endless debates on the land reform policy and the ‘radical’ proposed strategy of expropriating privately-owned land without compensation had South Africans questioning the effects of the strategy, and the unpopular decision to adjust Section 25 of the Bill of Rights in the Constitution. Traditional leaders like King Zwelithini Goodwill, leader of the Ingonyama Trust, were reassured that communal land would not be included in the redistribution of land for the public interest– mainly because distributing privately–owned land entrusted to traditional leaders would violate the statutory land laws. What is not addressed in the communal land entrusted to traditional leaders is the protection of women’s right to land in patriarchal communal areas operating under customary laws. This discussion of women accessing rural land has resulted in an increasing number of women gaining opportunities to access and control residential and agricultural land. However, in practice, access to land does not guarantee sustainable use and ownership of the acquired land - rather, temporary access is given. Women’s control and ownership of communal land are dependent on their social networks and affiliations to men in their family and community. This study investigated the ownership of land as a factor of empowerment amongst women living in the rural community of Nqadu, which will be referred to as Nqadu throughout the study, and the existing relationship between traditional authorities and municipal officials in hindering or enhancing the power within the Nqadu women. In addition, the thesis highlighted where the Land Reform Policy and its gender-equality mandate is not upheld in the rural area of Nqadu, it also discussed reasons why it is not upheld and explore how women see the land reform policy as a mechanism for their enhanced and improved livelihood. The aim of this study was not merely to create enlightenment about the imbalances in women’s land ownership and control but to also to investigate women empowerment in relation to land ownership in Nqadu, Eastern Cape. The researcher argues that communal rural practices disregard gender mainstreaming and work as an isolated system apart from the prevailing norms in the legal systems in administering the allocation of land to women. To investigate the effects of the customary laws on the fulfilment of livelihood assets and its impact on the mobilisation of women to own and control land within communal traditional areas, the Sustainable Livelihoods Approach (SLA) was employed. A mixed-methods approach was used, and semi-structured interviews and questionnaires and secondary statistical data were also utilised to support the qualitative data. To gain enlightenment on development of the tenure status in the Mbhashe local municipality, the municipal officials who are responsible for the land-related issues in Mbhashe were also interviewed. Due to data limitations within the primary statistical data, a greater focus was placed on the strategies used to handle land allocation in Nqadu, which is largely a male dominated traditional councils. In addition, semi-structured interviews and focus group discussions were conducted alongside the collection of secondary data in the form of statistical data and policy documents, i.e MLM IDP and the DRDLR. Although the policies and programmes tabled by the DRDLR in relation to land reform have initiated conversation and implementation as far as land tenure is concerned, the coordination of the statutory and customary laws and practices are mutually exclusive. The Nqadu women continue to depend on social affiliation and structural relations within their relationships with the Nqadu men. It is advised that local and municipal government’s focus the target population for gender mainstreaming projects and gender-equal policy frameworks on men as much as women. This strategy will reduce the copying mechanism used to remain silent in households or communities that hinder their empowerment. Land reform has aided in the transformation of land from black to white, however, the proportion of women who have complete ownership and control over residential and agricultural land in communal rural areas is has not improved. Women must be provided the same opportunity to control assets like land, if not land reform will continue to be a political mechanism to empower of black people, or create a wealthier class within the black community but not all genders.
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Goodwin, David Pell, and n/a. "Belonging knows no boundaries : persisting land tenure custom for Shona, Ndebele and Ngai Tahu." University of Otago. Department of Surveying, 2008. http://adt.otago.ac.nz./public/adt-NZDU20080807.151921.
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Aspects of customary land tenure may survive even where formal rules in a society supersede custom. This thesis is about persisting custom for Maori Freehold land (MFL) in New Zealand, and the Communal Areas (CAs) of Zimbabwe. Three questions are addressed: what unwritten land tenure custom still persists for Ngai Tahu, Shona and Ndebele, what key historical processes and events in New Zealand and Zimbabwe shaped the relationship between people and land into the form it displays today, and how do we explain differences between surviving customary tenure practices in the two countries? The research was based on in-depth interviews.
A key difference between the two countries was found to lie in the type and degree of security available over the years to Maori and Shona/Ndebele. Roots of security were found in the substance of the founding treaties and concessions, and thereafter in a variety of other factors including the help (or lack of it) offered by the law in redressing grievances, the level of intermarriage between settler and autochthon, the differing security of land rights offered in urban centres in the respective countries, demographic factors and the availability of state benefits. This research finds that greater security was offered to Maori than to Shona and Ndebele, and that this has reduced the centrality of customary practices with regard to land.
The research found that, in Zimbabwe, tenure security in the CAs is still underwritten by communities and that significant investment is still made in both living and dead members of those communities. Another finding is that land custom has adapted dynamically to meet new challenges, such as urban land and CA land sales. In New Zealand, investment in groups that jointly hold rights in MFL has, to some extent been eclipsed by the payment of rates and the availability of services (e.g. state-maintained boundary records and law enforcement mechanisms) and of benefits (e.g. superannuation, disability and unemployment). Land and community are not as closely linked to survival as they were in the past and, for many, they have come to hold largely symbolic value and less practical significance. Overall, it is the pursuit of security and �belonging� that have been the greatest influences on customary land tenure practices in the long term.
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Museke, Vicent. "The role of customary courts in the delivery of justice in South Sudan." Diss., 2015. http://hdl.handle.net/10500/19905.
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This study examines the role of customary courts in the delivery of justice in South Sudan. In
doing so, it analyses the legal background, the hierarchy and composition of the customary
courts. The considerations behind the constitutional recognition of the customary law courts in
the current constitutional dispensation and the jurisdiction of customary courts are limited to
customary matters and only criminal cases with a customary interface. It is noted that the
customary Judges do not only exercise judicial functions but also play executive and legislative
functions which contravene the constitutional principle of separation of powers. Reconciliation
and compensation are noted as the major principles applied in the customary law courts. The
major concern is that most practices in the customary law courts violate fundamental human
rights.Public, Constitutional and International Law
LLM
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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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Moodley, Isabel. "The customary law of intestate succession." Thesis, 2012. http://hdl.handle.net/10500/8829.
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The title of this thesis is: The Customary Law of Intestate Succession. The African
customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law.
This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a
statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the
customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and
development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate
succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of
Swaziland.
Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights
of women as far as the customary law of intestate succession is concerned. The
chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law.Public, Constitutional, & International
LL.D.
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Govender, Anneline Michelle. "African customary law : a constitutional challenge for gender equality." Thesis, 1999. http://hdl.handle.net/10413/5620.
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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.
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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)
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.
28
Rapudi, Jonathan. "An analysis of the impact of the right to equality on the South African customary law and legislation." Diss., 2012. http://hdl.handle.net/11602/46.
Full text
29
Mkhize, Petros Bonginkosi. "A comparative analysis of the practice of family mediation with particular reference to African customary mediation." Thesis, 1997. http://hdl.handle.net/10413/5470.
Full textAbstract:
Family mediation is a process that' was and is still practised by African
indigenous societies. However, mediation in relation to family and divorce
matters, is viewed either positively or negatively by most South African writers
mainly from a Western perspective.
The recommendations made in this work focus, amongst other things, on what
ought to be done by policy makers and exponents of mediation in order to
make the ,benefits of mediation realised by South Africans particularly
disadvantaged communities.
The role of illiterate and semi-literate South African citizens)'is pointed out as
being critical more in managing family disputes from disfunctioning the family
and leading to marriage break-down than merely mediating the parting of ways
and ancillary issues of marriage.
The practice of family mediation and procedures followed by Africans when
introducing the son-in-law to the daughter-in-Iaw's family and the protracted
marriage negotiations between Umkhongi (emissary) and the in-laws are all
indicative of the entrenched or mandatory approach to family mediation.
The benefits of the peaceful ending of marriage relationship through third party
interveners are highlighted in President Mandela's desire to terminate his
marriage as 'painless as possible' particularly for the sake of children.
It is pointed out in this work that the Bushmen of the Kalahari Desert still
adhere strictly to their tribal mediation procedures both in relation to family
disputes and disputes in general. The tribe relies highly on korakoradue who is
its senior citizen and respected elder, as resolver of community disputes.
III
The South African Justice Department brought hope when it worked toward
introducing divorce mediation legislation. However, the vision was misdirected
as the enacted family mediation legislation turned out to be constraining in its
operation contrary to the recommendations by the Hoexter Commission. The
majority of destitute South Africans who should be benefiting from this
legislation end up not knowing about the existence of the Act and/or not making
use of it because of the costs involved as only the Supreme Court can
adjudicate upon matters covered by the Act.
The lack of research which focuses on local mediation styles makes it difficult
to justify, for example, either Mrs. Mandela's claim when she said ,Mr. Mandela
had not answered to the 'African Cultural and Traditional Inkundla' or Mr.
Mandela's defence that he respects customs but is not a 'tribalist' as he 'fought
as an African Nationalist with no commitment to any tribal custom'.Thesis (LL.M.)-University of Durban-Westville, 1997.
30
De, Wet Johanna Gertruida Susanna. "Die erkenning van gewoontereg ten opsigte van Swartes." Thesis, 2015. http://hdl.handle.net/10210/14176.
Full text
31
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.
32
Singh, Vijyalakshmi. "South African indigenous courts : challenge for the future." Diss., 1994. http://hdl.handle.net/10500/16044.
Full textAbstract:
The purpose of this study is to access the viability of traditional
African courts in a future legal dispensation in South Africa. The research
method used is a study of literature, court decisions and relevant statutes.
The development of indigenous courts in South Africa is broadly outlined. As
an analogy to the South African court system, the courts of Lesotho, Swaziland
and Botswana are used to illustrate the dual systems of courts. Rapid
urbanisation is discussed to illustrate that despite the increasing
urbanisation, traditional values remain inherent to South African Blacks. The
salient features of indigenous courts are analysed to facilitate the
development of reform measures that have to be implemented so that the courts
can meet the challenge of the future.Constitutional, International & Indigenous Law
LL.M.
33
Van, Niekerk Gardiol Jeanne. "The interaction of indigenous law and Western law in South Africa : a historical and comparative perspective." Thesis, 1995. http://hdl.handle.net/10500/17738.
Full textAbstract:
Historically South African law has been dominated by Western law. Indigenous law and
the jural postulates which underpin that law are insufficiently accommodated in the
South African legal order. The Western component of the official legal system is
regarded as institutionally and politically superior and is as such perceived to be the
dominant system. In contrast indigenous law is regarded as a servient system. The
monopolistic control of the legal order by the Western section of the population
resulted in the creation of a legal order primarily suited to its own needs.
The fact that few of the values of indigenous law are reflected in the official legal
system and the fact that there is a measure of conflict and tension between the
fundamental precepts of indigenous law and those of Western law, gave rise to a crisis
of legitimacy of the official legal system in South Africa. This in turn lead to the
emergence of unofficial alternative structures for the administration of justice.
Indigenous law should receive full recognition and enjoy the same status as Western
law. To accomplish this, legislative measures which entrench a distorted indigenous
law, limit the application of indigenous law, or affect its status in the South African legal
order, should be revoked.
Even in a multicultural society such as that of South Africa, there is a common nucleus
of core values that are shared by the whole society. But different cultures have
different conceptions of these basic values and their role in legal, political and social
ordering. The Bill of Rights should give due recognition to the postulates which
underscore both Western and indigenous law. This should be done by providing that
the values the Bill entrenches, must be interpreted in their proper cultural perspective
where circumstances so demand. But this will be possible only if the level of
knowledge of indigenous law and its fundamental precepts is drastically improved.LL.D
34
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
35
Ross, Derrick Bernard. "The constitution, hermeneutics and adjudication : point of departure for substantive legal argument." Thesis, 1999. http://hdl.handle.net/10500/17636.
Full textAbstract:
The Constitution stipulates that its value-commitments are to inform the
interpretation of statutes and the development of the common law and customary
law. Legislative construction and law-application generally are therefore to be
perceived as involving an axiological dimension.
Three hermeneutical traditions are dealt with to the end of clarifying the approaches
to be adopted in everyday legal• argumentation. The study culminates in the
adduction of leads for substantive !juridical argument in the process of statutory
interpretation and in handling common-law and customary-law sources. These
leads are shown to be functional byi way of a critical discussion of recent case law
and a conspectus of contemporary t~ought bearing on the nature of customary law.
The social dimension of the legal process is throughout underscored as a factor of
significance. Concomitantly, it is rcigistered that the jurisprudence of formalism, so
marked an attitude of a previous time, should be abjured to the extent that it is
disdainful of value-commitment. Conformably, literalist and literalist-cumintentionalist
perceptions as well as kindred stances are berated.
The penultimate chapter of this thesis suggests an encompassing approach to the
interpretation of statutes, comprised of a systematic tabulation of insights
previously garnered. The fmal chapter postulates that common law and customary
law are not to be dealt with upon an interchangeable basis, inasmuch as the sources go out from radically divergent premises. It then proceeds to elaborate a
conceptual framework for dealing respectively with each of these sources.Law
LL.D.
36
Mokgola, Mashilo Sipho. "The role of external actors in resolving the 2013 political crisis in the newly independent state of South Sudan: From 2013 to 2015.:." Diss., 2019. http://hdl.handle.net/11602/1504.
Full textAbstract:
MA (Political Science)Department of Development Studies
This study focuses on the politics of conflict resolution, paying special attention to the role of the international community in resolving the political crisis in South Sudan. The current political crisis in South Sudan has historical connections that date back to the time when Sudan was granted independence by the British government in 1956.These historical antecedents paved the way for the current political crisis which started on December 2013. The study is guided by the International Society Theory or the English School of Thought. The wisdom of the International Society Theory affirms international obligations bestowed on the members of the international community. According to this theory response to crisis of humanitarian nature such as the South Sudanese political crisis is part of the broader debate. Qualitative methods were used in this study because the researcher because they enabled the researcher to gain deeper insights on the research problem. All guidelines regarding ethical considerations were followed in order to avoid being biased and misinterpretation of information. Data were obtained from primary and secondary sources what sources. The study concludes that despite the involvement of many external actors, the conflict is still raging on due to a numbers of reasons such as, mistrust between the conflicting parties and lack of political will to resolve the conflict. Key words: Humanitarian intervention, Conflict, Nation-Building, Coup d’état, Conflict resolution, Horn of Africa, State formation, Responsibility to protect (R2P)
NRF
37
Simba, Lavhelani Dembe. "The edge effects of mango farming on flower visitor insect communities and epigeal ant species in Northern-Eastern South Africa." Diss., 2015. http://hdl.handle.net/11602/331.
Full text
38
Raphalalani, David Tshinetise. "The impact of the Customary Law Marriages Act (Act 120 of 1998) on the prevelence of divorce among the Vhavenda in the Vhembe District of Limpopo Province in South Africa." Thesis, 2016. http://hdl.handle.net/11602/353.
Full text
39
Kingwill, Rosalie Anne. "The map is not the territory: law and custom in ‘African freehold’: a South African case study." 2013. http://hdl.handle.net/11394/3597.
Full textAbstract:
Philosophiae Doctor - PhDThe thesis examines the characteristics of land tenure among African families with freehold title who trace their relationship to the land to their forebears who first acquired title in the mid-nineteenth century. The evidence was drawn from two field sites in the Eastern Cape, Fingo Village, Grahamstown and Rabula in the Keiskammahoek district of the former Ciskei. The evidence, supported by evidence in other Anglophone countries, shows that African familial relationships reminiscent of ‘customary’ concepts of the family, were not, and are not extinguished when title is issued, though they are altered. Africans with title regard the land as family property held by unilineal descent groups, challenging the western notion of one-to-one proprietal relationships to the land and its devolution. By exploring the intersection between tenure, use and devolution of land, the main findings reveal that local conceptions of land and use diverge considerably from the formal, legal notion of title. Title holders conceive of their land as the property of all recognised members of a patrilineally defined descent group symbolised by the family name. Because freehold is so intimately linked with inheritance, the findings significantly illuminate the social field of gender and kinship. The implications of the findings are that differing concepts of the ‘family’ and ‘property’ are fundamental to the lack of ‘fit’ between the common-law concept of ownership and what I term in the thesis ‘African freehold’. The thesis dissects the implications of culturally constructed variability in familial identities for recognition and transmission of property. Title is legally regulated by Eurocentric notions of both family and property, which lead to significant divergence between western and African interpretations of ownership, transmission and spatial division of land. The deficiencies of the South African legal mindset with regard to property law are thus fundamentally affected by the deficiencies in recognising the broader field of gender and kinship relations. The findings fundamentally challenge the dualistic paradigm currently prevalent in much of South African legal thinking, since the factors that are found to affect land tenure relationships cannot be reduced to the binary distinctions that are conventionally drawn in law, such as ‘western’ vs. ‘customary’ or ‘individual’ vs. iii ‘communal’ tenure. Instead, the important sources of validation of social (importantly, familial) and property relationships are found to be common to all property relationships, but are arranged and calibrated according to different normative patterns of recognition. In the case of the subjects in the field sites, these do not fit into the main ‘categories’ of property defined in law. Neither of the main bodies of official law, the common law and customary law, adequately characterise the relationships among the African freehold title holders. The source of legitimation is, therefore, not the ‘law’ but locally understood norms and practices. The findings suggest that the practices of the freeholders, derived from constructed ideas of kinship and descent, have relevance for a wide range of diverse African land tenure arrangements and categories, and not only ‘African freehold’. The findings therefore have significant implications for law reform more broadly. The thesis suggests that law reform should move away from models that do not match reality, and in particular should heed the warnings that titling policies as presently designed are particularly poorly aligned with the realities presented in the thesis.
40
Anspach, Philip. "The basis of contractual liability in indigenous law." Diss., 2003. http://hdl.handle.net/10500/1765.
Full textAbstract:
This study examines the basis of contractual liability in indigenous law. It concludes that contractual liability arises only from real contracts where one party has performed fully or partially in terms of an agreement. Attention is given to both the nature and concept of indigenous contracts to ascertain the function of contracts in indigenous societies in order to bring a holistic perspective to the topic.
It is demonstrated that the settlement of disputes arising out of indigenous contracts is primarily focused on the reconciliation of people and the consequent maintenance of harmony within the community. The foremost concern in indigenous law of contract is with human justice rather than with strict legal justice, and expression is thereby given to prevailing community values.Indigenous Law
LL.M.
41
Ndlovu, Thatshisiwe. "Silent victims or agents of change? An exploration of the lived experiences of African widows confronted with the practice of customary law of succession and inheritance in South Africa." Thesis, 2016. http://hdl.handle.net/10539/19599.
Full textAbstract:
A research report submitted to the Faculty of Humanities in partial fulfilment of the requirements of the Masters of Arts degree in Development Studies.
University of the Witwatersrand
Johannesburg
March 2015This study seeks to explore the lived experiences of black South African widows living in a poor socio-economic locality using a qualitative research design, which allows for deeper engagement of widows’ experiences of their own world. Having benefited immensely from reviewing literature on numerous legislative measures that have been enacted to protect the rights of women in South Africa, this study takes an entry point of analysing experiences of widowhood from the widow’s perspective. Underpinned by the central question of examining how and in what ways customary practices of inheritance have affected the lived experiences of widows, the study challenges the view that African widows are silent and helpless victims of patriarchal beliefs and practices. It presents findings drawn from life history narratives of ten black women living in low-socio economic areas of Midrand and Tembisa located in the present day Gauteng province of South Africa, which indicated that widows in this locality were victims of structural, political and socio-economic factors. It also observed that widows were also victims of invisible and often unrecognised power of patriarchal attitudes that have lingered on. The study then deployed a feminist narrative approach to analyse the findings, which shows that some of the black women’s experiences are informed by their socio-cultural realities and their lives are shaped by the unique intersection between race, gender and social class. Drawing from the main findings, I argue that culture, patriarchy, tradition, gender, and class are not distinct realms of experience, existing in isolation; rather they come into existence in and through relations with each other. Furthermore, the study argues that the connection between widowhood and law is marked by contradictions and uncertainties, which are deeply embedded in unequal power relations, socio-cultural and legislative measures of the broader post-apartheid South African context. By extension, this has seen such dynamics as class, level of education and types of marriages strongly playing themselves out in the lived experiences of widowhood. The study uses this as a launch pad to argue that in various ways, African widows exercise their agency, their silence being one of their chosen forms of resistance to challenge and question patriarchal domination. This study then suggests that widows and the experience of widowhood ought not to be seen from a homogenizing approach, as it tends to mask the limitations of legislative measures as an effective mechanism in countering the negative effects of customary and traditional practices.
42
Johannes, Benhardt Laurentius. "The interpretation of South African double taxation agreements under international law." Diss., 2014. http://hdl.handle.net/2263/41452.
Full textAbstract:
This dissertation interrogates which principles should govern the interpretation of South African Double Tax Agreements (‘DTAs’). This field of study is complex because any DTAs have a dual nature. In the first place, it is an international agreement where two states are parties (a bilateral agreement); second, it also becomes part of domestic law. DTAs are governed by principles of customary international law some of which have been codified in the Vienna Convention on the Law of Treaties (‘VCLT’). Though South Africa is not a party to the VCLT, nevertheless, there is judicial support in South Africa for the notion that VCLT reflects general principles of international law [Harksen v President of the Republic of South Africa 1998 (2) SA 1011 (C)]. DTAs are incorporated into South African domestic law by way of statutory enactment in accordance with the dualist approach to international law.
The first purpose of the dissertation is to systematise and analyse the structure of an OECD Model Tax Convention (‘OEC D MTC’) and the international methods (principles) of interpretation of DTAs in order to gain a better understanding of how this international methods functions. A number of issues relating to the interpretation of these methods are analysed. Since DTAs are applied by tax authorities, courts and taxpayers in a domestic law context, i.e. within the framework of the legal system of a particular state, the analysis focuses on the application in South Africa of the methods of the interpretation of South African DTAs.
The second objective of the dissertation refers to international tax law principles (treaties and customary international law) derived from South Africa public international law and to evaluate a few selected issues related to South African DTAs and their relevance to South Africa domestic tax laws; the interpretation of DTAs and the implications of a DTA overriding or in conflict with South Africa domestic tax laws. It will also interrogate the legal status of a DTA under South African tax law and whether the anti-discrimination article in South Africa DTAs have the force of law in South Africa?Dissertation (LLM)--University of Pretoria, 2014.
gm2014
Mercantile Law
unrestricted
43
Lamprecht, Andries Albertus. "International law in the post-1994 South African constitutions : terminology and application." Diss., 2002. http://hdl.handle.net/10500/832.
Full textAbstract:
An important change wrought by the post-1994 South African Constitutions is the attempt to
have South Africa recognised as a democratic and sovereign state in the "family of nations."
The new Constitutions make extensive reference to the state's international obligations and
represent an endeavour to [re]define the status of international law vis-a-vis national law.
Some provisions utilise international law in the interpretation and formulation of national
jurisprudence and represent an [albeit not totally successful] endeavour to attain greater
harmonisation between international and national law.
This is an attempt to systematize the various criticisms levelled against these provisions to
date, and to highlight certain interpretational difficulties and problems that present themselves
in the process. The distinction between the various terminologies and branches of
international law is also taken to task. Lastly, this paper attempts to determine the extent to which international law is applied at national level under the post-1994 constitutions.Jurisprudence
LL. M.
44
Matthee, Jacques Louis. "One person's culture is another person's crime : a cultural defence in South African law? / Jacques Louis Matthee." Thesis, 2014. http://hdl.handle.net/10394/13362.
Full textAbstract:
The South African legal system is dualistic in nature with the one part
consisting of the Western common law and the other consisting of African
customary law. Although these two legal systems enjoy equal recognition,
they regularly come into conflict with each other due to their divergent value
systems. It is especially within the context of the South African criminal law
that this conflict becomes apparent, because an accused's conduct can be
viewed as lawful in terms of African customary law, but unlawful in terms of
the South African common law. In such cases the accused may attempt to
raise a cultural defence by putting forth evidence of his cultural background
or values to convince the court that his prima facie unlawful conduct is
actually lawful and that he should escape criminal liability. Alternatively, an
accused may put forth evidence of his cultural background or values in an
attempt to receive a lighter sentence. The question which therefore arises is
whether a so-called "cultural defence" exists in the South African criminal
law, and if so, what the influence of such a defence on the South African
criminal law is.
The conflict between African Customary law and the South African common
law in the context of the criminal law arises due to the fact that the indigenous
belief in witchcraft, (including witch-killings), the indigenous belief in the
tokoloshe and the use of muti-medicine (including muti-murders), as well as
the phenomenon of "necklacing" and the custom of ukuthwala can result in
the commission of various common law crimes. In the case of witch-killings,
the perpetrators can be charged with the common law crimes of murder or,
if the victim survives, attempted murder, common assault or assault with
intent to do grievous bodily harm. Similarly, necklacing, as a method used
for killing witches, can also result in the commission of these common law
crimes. What is more, the perpetrators of witch-killings can also be charged
with the statutory crimes of accusing someone of witchcraft, pointing the
victim out as being a witch or wizard or injuring a person based on
information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the
common law crimes of murder or, if the victim survives, common assault or
assault with intent to do grievous bodily harm. The perpetrators of mutimurders
can also face charges of murder or attempted murder, if the victim
survives. The indigenous custom of ukuthwala can result in the commission
of common law crimes such as abduction, kidnapping and common assault,
as well as the statutory crime of rape.
A perusal of South African case law dealing with the indigenous beliefs and
customs above reveals that the accused in such cases have indeed
attempted to put forth evidence of their indigenous beliefs or customs to
persuade the criminal courts that they should escape criminal liability for a
particular crime. In fact, these arguments were raised within the context of
the existing common law defences such as private defence, necessity,
involuntary conduct and a lack of criminal capacity. However, the South
African criminal courts have up till now in general been unwilling to accept
arguments of indigenous beliefs and customs to serve as a defence, either
alone or within the context of the existing defences above, for the
commission of a common law or statutory crime.
They have, however, been more willing to accept evidence of an accused's
indigenous belief or custom to serve as a mitigating factor during sentencing.
The extent to which an accused's cultural background will serve as a
mitigating factor will, of course, depend on the facts and circumstances of
each case. As a result an accused who is charged with the commission of a
culturally motivated crime has no guarantee that his cultural background and
values will in fact be considered as a mitigating factor during his criminal trial.
It is thus ultimately concluded that a so-called "cultural defence" does not
exist in the South African Criminal law.
The indigenous beliefs and customs above not only result in the commission
of common law or statutory crimes, but also in the infringement of various
fundamental human rights in the Constitution. Witch-killings result in the
infringement of the constitutional right to life and the right to freedom and
security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in
the Constitution. Similarly, muti-murders and necklacing also result in the
infringement of the right to life and the right to freedom and security of the
person entrenched in the Constitution. The custom of ukuthwala results in
the infringement of the right to equality, the right to freedom and security of
the person, the right to live in an environment that is not harmful to health or
well-being, the right not to be subjected to slavery, servitude or forced labour,
the right to basic education and other constitutional safeguards aimed at
protecting children.
In light of the constitutional right to freedom of culture and the right to freely
participate in a cultural life of one's choosing the question can be asked
whether the time has come to formally recognise a cultural defence in the
South African criminal law. In this study it is argued that these constitutional
rights do not warrant the formal recognition of a cultural defence. Instead, it
is recommended that the conflict between African customary law and the
South African common law can be resolved by bringing indigenous beliefs
and customs in line with the values that underpin the Constitution as the
supreme law of South Africa. Of course, this does not mean that the courts
should ignore cultural considerations during a criminal trial if and when they
arise. In fact, as pointed out in this study, the courts have a constitutional
duty to apply African customary law when that law is applicable. It goes
without saying that, when an accused attempts to escape criminal liability for
his unlawful conduct by raising arguments of his cultural background, African
customary law will be applicable and must be considered by the court. This
in turn raises the question as to how the criminal courts can ensure that they
give enough consideration to the possibility that an accused's criminal
conduct was culturally motivated so as to comply with their constitutional
mandate referred to above. Although it would be nearly impossible to
formulate a perfect or flawless approach according to which a judicial officer
can adjudicate criminal matters involving culturally motivated crimes, the
author suggests the following practical approach which may provide some
guidance to judicial officers in dealing with cases involving culturally
motivated crimes: • Step 1: Consider whether the commission of the crime was culturally
motivated or not. If it seems as though the accused did not commit a
culturally motivated crime, the trial can continue on that basis. If,
however, it is evident that the accused indeed committed a culturally
motivated crime, step 2 follows.
• Step 2: Once it has been determined that the commission of the crime
was culturally motivated, the next step is to determine which indigenous
belief or custom led to the commission of the crime. Once the relevant
indigenous belief or custom has been identified, step 3 follows.
• Step 3: When it is clear which indigenous belief or custom led to the
accused's commission of the crime, the next step is to determine
whether arguments pertaining to that particular indigenous belief or
custom may be raised within the context of the existing defences in the
South African Criminal law in order to exclude the accused's criminal
liability. If an accused relies on one of the existing defences in the South
African criminal law, he will have to lay a proper evidential foundation
for his defence before the court. In assessing the evidence put forth by
the accused, the judicial officer must consider the judgment and
reasoning in previous cases dealing with the particular indigenous
belief or custom. A judicial officer must also consider the values
underpinning the Constitution when conducting such an assessment. If
a judicial officer upholds an accused's defence, the accused is
acquitted. However, if the judicial officer rejects an accused's defence,
the accused must be convicted and step 4 follows.
• Step 4: Once an accused has been convicted, a court should consider
whether arguments of his cultural background can serve as an
extenuating circumstance, mitigating the punishment to be imposed on
him.
However, the practical approach above merely serves as a suggestion to
judicial officers in dealing with culturally motivated crimes and ultimately it
will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two
legal systems.
The research for this study was concluded in November 2013.LLD, North-West University, Potchefstroom Campus, 2014
45
Murugani, Vongai Gillian. "Land use security within the current land property rights in rural South Africa : how women's land based food security efforts are affected." Thesis, 2013. http://hdl.handle.net/10413/10587.
Full textAbstract:
Rural women‘s land rights in South Africa remain secondary in spite of laws founded on a
constitution that promotes gender equality. Patriarchal customary laws prevail and women‘s
land rights and use security are inextricably linked to their relationships with their male
relatives. Rural women are key producers of agricultural products due to historical and
continued male outward migration, which has led to a feminisation of agriculture. Although
women farm the land, their land use security is poor and can be further threatened by divorce
or widowhood. Given that most vulnerable women are based in rural communal South Africa,
how can their land rights be secured under the customary law framework? While the statutory
law framework seems to provide a solution, it is less applicable in rural areas where
customary law and traditional practices prevail. If statutory law cannot be superimposed on
the existing customary law framework, how can women‘s land use be further secured to
support their household food security efforts? What kind of framework can be introduced to
strengthen women‘s land use security? A study was conducted in rural Limpopo Province to
explore this complex and yet important question. A mixed methods approach comprising
interview style questionnaires with a mixture of closed and open-ended questions, coupled
with focus group discussions and observation was employed. Qualitative data from the focus
group discussions and open-ended questions was analysed for common themes using content
analysis. Quantitative data was analysed using SPSS to establish descriptive data, frequencies
and establish the relationships between variables. Results of the analyses were used for
building blocks to develop a land rights framework that is more gender sensitive and secures
the rights of the actual land users. Women‘s land rights were largely confirmed to be
secondary and land use security was linked to the continued relationship to male relatives
through marriage and natural blood lines. From these findings, a gender sensitive framework
that enables and improves land-based food security efforts has been proposed.Thesis (M.Sc.Agric.)-University of KwaZulu-Natal, Pietermaritzburg, 2013.
46
Kgosietsile, Madume. "Protection against torture in international law." Diss., 2015. http://hdl.handle.net/10500/19200.
Full textAbstract:
This limited scope dissertation deals with the protection against torture in international law. The mechanisms which have been established over the years to protect individuals against torture are analysed. The principles of international customary law dealing with torture and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) have been examined against the failure by States to honour their obligations under the Treaty and other legal normative rules. This required deep exploration of the definition of torture and how States can compromise the rule of law by manipulating the definition of torture as contemplated by the Treaty or other instruments. Examples from the former US government highlight the ways in which domestic laws can be used and are continued to be used to allow the use of torture. Measures by South Africa in joining the international community in the fight against torture are also discussed as a case study. While all efforts have been made by the South African system to adopt desirable frame works on the protection of individuals against torture, the lack of education on torture remains the down fall of the system. The dissertation clearly explains that universal jurisdiction applies in respect of torture and this is recognised by both treaty law and customary law. Indeed despite all the current measures in place the use of torture persists. The research clearly reveals that countries hide behind their own laws to perpetrate acts of torture. It is then recommended that proper implementation of the legal structures, informed of the objectives of the structures, is essential in completely eradicating torture.Public, Constitutional, and International Law
LLM
47
Mashele, Ngwamolangacha Madali Benedicta. "Experiences of newly married black women staying with the extended family in an urban township." Thesis, 2012. http://hdl.handle.net/10210/6850.
Full textAbstract:
M.Cur.In the black society, a family is the central unit whose unity and cohesiveness should be maintained. A nuclear family is the predominant form in the urban townships and it is marked by a family group of two generations that consists of the married couple and their children. Another form of family that is dominant is the extended family, which consists of three or more generations, staying in the same household. The extended family is seen as the sole provider of care and emotional support for newly married black women. The essence of the extended family lies in the bonds between its members ignoring the independence and needs of the newly married black women. In South Africa when black couples choose to marry they can do so under the common law or customary law. The customary law encourages payment of lobola, after which the bride (newly married black woman) will be handed over to the extended family, that is the husband's family. The newly married black women are expected to live with their husband's family, in order to learn the "newly" adopted culture of the extended family. The teaching of the new culture" is taught to the newly married woman by the mother and sister in-law. However, if the newly married black women do not follow the expected practices from the teaching of the extended family, this can have a negative effect on their body, mind and spirit. These negative effects can be a result of victimization by the extended family. To explore this problem of the newly married black women further, the researcher conducted a study on the experiences of newly married black women who live with the extended family in an urban township. The objectives of the study were to: • explore and describe the experiences of newly married women living with the extended family; and vi describe guidelines developed for advanced psychiatric nurses to facilitate the mental health of newly married black women that live with the extended family in an urban township. This study was undertaken within the framework of the Theory for Health Promotion in Nursing (Rand Afrikaans University: 2000), that has an approach that is Christian-based, and functions in an integrated bio-psycho social manner (body, mind and spirit). A functional reasoning approach based on Botes' model (2000) was followed. A qualitative, explorative, descriptive and contextual research design was used to answer the research questions. In-depth, semi-structured phenomenological interviews were conducted with newly married black women who met the sample criteria. Steps were taken throughout the research to ensure trustworthiness. To persuade the audience that the findings of this research are worth paying attention to, Guba's model for trustworthiness (Lincoln & Guba, 1989: 289) will be applied. Data analysis was done according to Tesch's (Creswell, 1994: 155) method. The results of this study indicate that newly married black women that stay with the extended family in an urban township, in this study have had various experiences such as: feelings of entrapment by cultural norms; and negative psychological effects evidenced by anger, frustration and hatred. Positive emotions like hope and determination, and the experience of support from outside the extended family were also experienced. Based on these results, guidelines were developed for advanced psychiatric nurses to facilitate the promotion of mental health of newly married women that live with the extended family in an urban township. Conclusions were drawn and recommendations were given concerning psychiatric
48
Engelbrecht, Henriétte. "Begrip Regte in Eiendom in Artikel 28(1) van die grondwet van die Republiek van Suid-Afrika 200 van 1993." Diss., 1995. http://hdl.handle.net/10500/16751.
Full textAbstract:
Summaries in Afrikaans and EnglishText in Afrikaans
Die eiendomsklousule soos vervat in Artikel 28(1) van die Grondwet waarborg regte in eiendom. Daar word na die tradisionele eiendomsparadigma verwys, asook die leemtes in die konsep. Die "new property"-konsep word vervolgens in oenskou geneem. Sowel die gemenereg as die inheemse reg word, met verwysing na die begrippe "regte" en "eiendom", behandel. Daarna volg 'n bespreking van die konsep "regte in eiendom", wat die inhoud en omvang van die konsep aandui. In 'n afsonderlike hoofstuk word regte in grand bespreek. Die vraag of 'n konstitusionele reg ten aansien van huisvesting bestaan, geniet oak aandag. Ten slotte word regsvergelykend te werk gegaan en na buitelandse regsbronne verwys wat moontlik in die toekoms 'n rol by die uitleg van die Grondwet kan speel. Daar word gepoog om aan te dui dat die Grondwet as geheel ge"interpreteer en toegepas behoort te word. Die korrekte interpretasie en toepassing van die Grondwet word van uiterste belang beskou ten einde aan die doel van die Grondwet te voldoen.
The property clause is contained in Section 28(1) of the Constitution, which guarantees rights in property. The tradisional property paradigm is referred to, as well as its deficiencies. Thereupon the "new property" concept is taken account of. The common law and the customary law are dealt with, with reference to the concepts "rights" and "property". Subsequently a discussion of the concept "rights in property" follows, denoting this concept's contents and extent. Thereupon rights in land is dealt with. A constitutional right to housing is also attended to. Finally a comparative overview is given with reference to foreign case law, which may in future play a role in the interpretation of the Constitution. Attempts are made to indicate that the Constitution should be interpreted and enforced as a whole. In its correct interpretation and enforcement it is of utmost importance to have due regard to the objects of the Constitution.
Constitutional, International & Indigenous Law
LL.M.
49
Moodie, Nicolette. "Denial of inheritance rights for women under indigenous law : a violation of international human rights norms." Diss., 2000. http://hdl.handle.net/10500/17502.
Full textAbstract:
Throughout sub-Saharan Africa, women and girls are denied their right to inherit from their
husbands and fathers as a result of the operation of the indigenous law rule of male
primogeniture, in terms of which an heir must be male. This violates prohibitions on gender
discrimination, as well as other, more specific provisions found in international human rights
treaties. However, courts in both South Africa and Zimbabwe have in recent years upheld the
rule. States Parties to relevant treaties have an obligation to ensure equal inheritance rights for
women and girls. In the case of South Africa, provisions of the Constitution are also relevant.
After discussing the operation of the indigenous law of inheritance, the international human
rights provisions violated by it, as well as the recommendations of the South African Law
Commission and legislative proposals on this issue, the writer suggests that legislation should be
adopted to ensure equality for women and girls, while retaining the positive aspects of indigenous law and culture.Constitutional, International & Indigenous Law
LL. M. (Law)
50
Kugara, Stewart Lee. "Witchcraft belief and criminal responsibility: A case study of selected areas in South Africa and Zimbabwe." Thesis, 2017. http://hdl.handle.net/11602/867.
Full textAbstract:
PhD (African Studies)Centre for African Studies
This interdisciplinary study examined witchcraft beliefs and criminal responsibility in South Africa and Zimbabwe. The unshakeable deep rooted and profound cultural beliefs of African people do not find expression in written law and therefore introduce a mismatch between law as the people live it and law as contained in the statute books. The aim of this interpretive doctrinal (legal) and qualitative research study was two-fold. Firstly, it sought to evaluate and assess the influence of African value systems particularly ethical ideas on the development of criminal responsibility. Secondly, it undertook a comparative examination of the criminal responsibility of actors who commit crimes while labouring under belief in witchcraft. The research, therefore, undertook a comparative examination of the criminal responsibility of actors who commit crimes while labouring under the overpowering fear of belief in witchcraft. In that regard, the study was premised on and informed through theories of criminal punishment, a Human Rights Based Approach, psycho-analytic theory and socio-cultural theory. The primary motivation for the study was the need to address the mismatch of laws and African value systems and to add knowledge to the scholarly legal writing on beliefs in witchcraft. Explorative qualitative research methods of collecting data (case studies, semi-structured interviews and focus groups discussions) and the doctrinal methods of data collection (case law observation, newspaper reports and witchcraft legislations) were employed as the research methodologies for the purposes of this study. For social empirical findings to be useful in integrating with the legal issues, the study adopted an Indigenous Knowledge Systems (IKS) perspective. Although customary practices play a very important role in the lives of the African people, some of the rules can no longer withstand constitutional scrutiny. The research findings confirmed the mismatch that exists between the African value systems and the law. The study unveiled that the African value systems of the two countries have been affected by modernity. Also, the two countries have similar laws governing the aspect of belief in witchcraft that are weak and archaic thus introducing a lacuna in the