Dissertations / Theses on the topic 'Laws of Specific jurisdictions'

In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.

Newly licensed drivers on a provisional or intermediate licence have the highest crash risk when compared with any other group of drivers. In comparison, learner drivers have the lowest crash risk. Graduated driver licensing is one countermeasure that has been demonstrated to effectively reduce the crashes of novice drivers. This thesis examined the graduated driver licensing systems in two Australian states in order to better understand the behaviour of learner drivers, provisional drivers and the supervisors of learner drivers. By doing this, the thesis investigated the personal, social and environmental influences on novice driver behaviour as well as providing effective baseline data against which to measure subsequent changes to the licensing systems. In the first study, conducted prior to the changes to the graduated driver licensing system introduced in mid-2007, drivers who had recently obtained their provisional licence in Queensland and New South Wales were interviewed by telephone regarding their experiences while driving on their learner licence. Of the 687 eligible people approached to participate at driver licensing centres, 392 completed the study representing a response rate of 57.1 per cent. At the time the data was collected, New South Wales represented a more extensive graduated driver licensing system when compared with Queensland. The results suggested that requiring learners to complete a mandated number of hours of supervised practice impacts on the amount of hours that learners report completing. While most learners from New South Wales reported meeting the requirement to complete 50 hours of practice, it appears that many stopped practising soon after this goal was achieved. In contrast, learners from Queensland, who were not required to complete a specific number of hours at the time of the survey, tended to fall into three groups. The first group appeared to complete the minimum number of hours required to pass the test (less than 26 hours), the second group completed 26 to 50 hours of supervised practice while the third group completed significantly more practice than the first two groups (over 100 hours of supervised practice). Learner drivers in both states reported generally complying with the road laws and were unlikely to report that they had been caught breaking the road rules. They also indicated that they planned to obey the road laws once they obtained their provisional licence. However, they were less likely to intend to comply with recommended actions to reduce crash risk such as limiting their driving at night. This study also identified that there were relatively low levels of unaccompanied driving (approximately 15 per cent of the sample), very few driving offences committed (five per cent of the sample) and that learner drivers tended to use a mix of private and professional supervisors (although the majority of practice is undertaken with private supervisors). Consistent with the international literature, this study identified that very few learner drivers had experienced a crash (six per cent) while on their learner licence. The second study was also conducted prior to changes to the graduated driver licensing system and involved follow up interviews with the participants of the first study after they had approximately 21 months driving experience on their provisional licence. Of the 392 participants that completed the first study, 233 participants completed the second interview (representing a response rate of 59.4 per cent). As with the first study, at the time the data was collected, New South Wales had a more extensive graduated driver licensing system than Queensland. For instance, novice drivers from New South Wales were required to progress through two provisional licence phases (P1 and P2) while there was only one provisional licence phase in Queensland. Among the participants in this second study, almost all provisional drivers (97.9 per cent) owned or had access to a vehicle for regular driving. They reported that they were unlikely to break road rules, such as driving after a couple of drinks, but were also unlikely to comply with recommended actions, such as limiting their driving at night. When their provisional driving behaviour was compared to the stated intentions from the first study, the results suggested that their intentions were not a strong predictor of their subsequent behaviour. Their perception of risk associated with driving declined from when they first obtained their learner licence to when they had acquired provisional driving experience. Just over 25 per cent of participants in study two reported that they had been caught committing driving offences while on their provisional licence. Nearly one-third of participants had crashed while driving on a provisional licence, although few of these crashes resulted in injuries or hospitalisations. To complement the first two studies, the third study examined the experiences of supervisors of learner drivers, as well as their perceptions of their learner’s experiences. This study was undertaken after the introduction of the new graduated driver licensing systems in Queensland and New South Wales in mid- 2007, providing insights into the impacts of these changes from the perspective of supervisors. The third study involved an internet survey of 552 supervisors of learner drivers. Within the sample, approximately 50 per cent of participants supervised their own child. Other supervisors of the learner drivers included other parents or stepparents, professional driving instructors and siblings. For two-thirds of the sample, this was the first learner driver that they had supervised. Participants had provided an average of 54.82 hours (sd = 67.19) of supervision. Seventy-three per cent of participants indicated that their learners’ logbooks were accurate or very accurate in most cases, although parents were more likely than non-parents to report that their learners’ logbook was accurate (F (1,546) = 7.74, p = .006). There was no difference between parents and non-parents regarding whether they believed the log book system was effective (F (1,546) = .01, p = .913). The majority of the sample reported that their learner driver had had some professional driving lessons. Notwithstanding this, a significant proportion (72.5 per cent) believed that parents should be either very involved or involved in teaching their child to drive, with parents being more likely than non-parents to hold this belief. In the post mid-2007 graduated driver licensing system, Queensland learner drivers are able to record three hours of supervised practice in their log book for every hour that is completed with a professional driving instructor, up to a total of ten hours. Despite this, there was no difference identified between Queensland and New South Wales participants regarding the amount of time that they reported their learners spent with professional driving instructors (X2(1) = 2.56, p = .110). Supervisors from New South Wales were more likely to ensure that their learner driver complied with the road laws. Additionally, with the exception of drug driving laws, New South Wales supervisors believed it was more important to teach safety-related behaviours such as remaining within the speed limit, car control and hazard perception than those from Queensland. This may be indicative of more intensive road safety educational efforts in New South Wales or the longer time that graduated driver licensing has operated in that jurisdiction. However, other factors may have contributed to these findings and further research is required to explore the issue. In addition, supervisors reported that their learner driver was involved in very few crashes (3.4 per cent) and offences (2.7 per cent). This relatively low reported crash rate is similar to that identified in the first study. Most of the graduated driver licensing research to date has been applied in nature and lacked a strong theoretical foundation. These studies used Akers’ social learning theory to explore the self-reported behaviour of novice drivers and their supervisors. This theory was selected as it has previously been found to provide a relatively comprehensive framework for explaining a range of driver behaviours including novice driver behaviour. Sensation seeking was also used in the first two studies to complement the non-social rewards component of Akers’ social learning theory. This program of research identified that both Akers’ social learning theory and sensation seeking were useful in predicting the behaviour of learner and provisional drivers over and above socio-demographic factors. Within the first study, Akers’ social learning theory accounted for an additional 22 per cent of the variance in learner driver compliance with the law, over and above a range of socio-demographic factors such as age, gender and income. The two constructs within Akers’ theory which were significant predictors of learner driver compliance were the behavioural dimension of differential association relating to friends, and anticipated rewards. Sensation seeking predicted an additional six per cent of the variance in learner driver compliance with the law. When considering a learner driver’s intention to comply with the law while driving on a provisional licence, Akers’ social learning theory accounted for an additional 10 per cent of the variance above socio-demographic factors with anticipated rewards being a significant predictor. Sensation seeking predicted an additional four per cent of the variance. The results suggest that the more rewards individuals anticipate for complying with the law, the more likely they are to obey the road rules. Further research is needed to identify which specific rewards are most likely to encourage novice drivers’ compliance with the law. In the second study, Akers’ social learning theory predicted an additional 40 per cent of the variance in self-reported compliance with road rules over and above socio-demographic factors while sensation seeking accounted for an additional five per cent of the variance. A number of Aker’s social learning theory constructs significantly predicted provisional driver compliance with the law, including the behavioural dimension of differential association for friends, the normative dimension of differential association, personal attitudes and anticipated punishments. The consistent prediction of additional variance by sensation seeking over and above the variables within Akers’ social learning theory in both studies one and two suggests that sensation seeking is not fully captured within the non social rewards dimension of Akers’ social learning theory, at least for novice drivers. It appears that novice drivers are strongly influenced by the desire to engage in new and intense experiences. While socio-demographic factors and the perception of risk associated with driving had an important role in predicting the behaviour of the supervisors of learner drivers, Akers’ social learning theory provided further levels of prediction over and above these factors. The Akers’ social learning theory variables predicted an additional 14 per cent of the variance in the extent to which supervisors ensured that their learners complied with the law and an additional eight per cent of the variance in the supervisors’ provision of a range of practice experiences. The normative dimension of differential association, personal attitudes towards the use of professional driving instructors and anticipated rewards were significant predictors for supervisors ensuring that their learner complied with the road laws, while the normative dimension was important for range of practice. This suggests that supervisors who engage with other supervisors who ensure their learner complies with the road laws and provide a range of practice to their own learners are more likely to also engage in these behaviours. Within this program of research, there were several limitations including the method of recruitment of participants within the first study, the lower participation rate in the second study, an inability to calculate a response rate for study three and the use of self-report data for all three studies. Within the first study, participants were only recruited from larger driver licensing centres to ensure that there was a sufficient throughput of drivers to approach. This may have biased the results due to the possible differences in learners that obtain their licences in locations with smaller licensing centres. Only 59.4 per cent of the sample in the first study completed the second study. This may be a limitation if there was a common reason why those not participating were unable to complete the interview leading to a systematic impact on the results. The third study used a combination of a convenience and snowball sampling which meant that it was not possible to calculate a response rate. All three studies used self-report data which, in many cases, is considered a limitation. However, self-report data may be the only method that can be used to obtain some information. This program of research has a number of implications for countermeasures in both the learner licence phase and the provisional licence phase. During the learner phase, licensing authorities need to carefully consider the number of hours that they mandate learner drivers must complete before they obtain their provisional driving licence. If they mandate an insufficient number of hours, there may be inadvertent negative effects as a result of setting too low a limit. This research suggests that logbooks may be a useful tool for learners and their supervisors in recording and structuring their supervised practice. However, it would appear that the usage rates for logbooks will remain low if they remain voluntary. One strategy for achieving larger amounts of supervised practice is for learner drivers and their supervisors to make supervised practice part of their everyday activities. As well as assisting the learner driver to accumulate the required number of hours of supervised practice, it would ensure that they gain experience in the types of environments that they will probably encounter when driving unaccompanied in the future, such as to and from education or work commitments. There is also a need for policy processes to ensure that parents and professional driving instructors communicate effectively regarding the learner driver’s progress. This is required as most learners spend at least some time with a professional instructor despite receiving significant amounts of practice with a private supervisor. However, many supervisors did not discuss their learner’s progress with the driving instructor. During the provisional phase, there is a need to strengthen countermeasures to address the high crash risk of these drivers. Although many of these crashes are minor, most involve at least one other vehicle. Therefore, there are social and economic benefits to reducing these crashes. If the new, post-2007 graduated driver licensing systems do not significantly reduce crash risk, there may be a need to introduce further provisional licence restrictions such as separate night driving and peer passenger restrictions (as opposed to the hybrid version of these two restrictions operating in both Queensland and New South Wales). Provisional drivers appear to be more likely to obey some provisional licence laws, such as lower blood alcohol content limits, than others such as speed limits. Therefore, there may be a need to introduce countermeasures to encourage provisional drivers to comply with specific restrictions. When combined, these studies provided significant information regarding graduated driver licensing programs. This program of research has investigated graduated driver licensing utilising a cross-sectional and longitudinal design in order to develop our understanding of the experiences of novice drivers that progress through the system in order to help reduce crash risk once novice drivers commence driving by themselves.

The appearance of the contemporary suburb is one of its most criticized and problematic features. Architects find themselves challenged by its increasing size and complicated planning issues. These challenges are compounded because traditional methods of control do not specifically confront these issues. A less comprehensive method of control, design codes, has recently emerged to address some of the limitations associated with traditional forms of control. This thesis is a survey of five design codes used in contemporary suburbs. Specific focus is given to examining the organization and objectives of design codes, and what architectural elements are regulated. The survey suggests that the most noticeable features of design codes is that they are specific to a project and site, address unique objectives of a particular community, and specifically address suburban design problems. This underlines the essential role design codes have in reshaping and ultimately improving the diminished appearance of the contemporary suburb.

This study will follow the development of the rules pertaining to apportionment of damages, with particular emphasis on the Apportionment of Damages Act 34 of 1956 (‘the Act”) and its applicability to contractual claims. It furthermore delves into the current legal position in England, Australia and New Zealand. In Thoroughbred Breeders Association v Price Waterhouse 1999 (4) SA 968 (W), the Court decided that the Act was applicable to contractual claims and apportioned the damages payable by the defendant to the plaintiff. However, the matter was taken on appeal with the decision of the Court a Quo overturned. It will be argued that, although the reasoning at first glance seems sound, upon closer examination, the application of the Act need not be limited solely to delictual claims. The best manner in which to remedy this lacunae in our law is an amendment to Section 1 (1) and 1(3) of the Act, to explicitly extend the application thereof to contractual claims.
Dissertation (LLM)--University of Pretoria, 2012.
Private Law
unrestricted

In the case of LaGrand (Germany v United States), the International Court of Justice held that the United States (US) had violated its international obligation to Germany under the Vienna Convention on Consular Relations when it executed two German nationals without first informing them of their consular rights. The case came before the court after the United States had disregarded a preliminary ruling passed by the IC], which directed the US not to execute the German nationals pending the outcome of the ICJ case. The decision raised the issue of the effect of ICJ decisions in domestic proceedings and the effectiveness of ICJ enforcement mechanisms. This thesis considers the possibility of a role for national courts as active enforcers of ICJ decisions. It is argued that whilst evidence shows that there is no legal obligation on courts to enforce ICJ decisions, there is certainly room in international law to facilitate this development. In support of this argument, the thesis demonstrates how basic presuppositions about international law have shifted over the last few decades. This shift has been both the impetus and the result of globalisation. The case of LaGrand alongside similar cases is used to show how national courts may play an increased role in the enforcement of ICJ decisions.

La thèse propose d'abolir, pour les besoins du droit international privé, les différents cloisonnements de la phase précontractuelle en retenant une approche unitaire du processus de formation du contrat. Dans cette perspective, il est proposé de dépasser la distinction entre les relations précontractuelles informelles et celles qui sont formalisées par un contrat préparatoire, de même que la distinction entre la phase précontractuelle et le contrat définitif. L'attraction du contrat projeté conduit à emprunter le rattachement de ce dernier pour désigner la loi applicable aux relations précontractuelles. Cette solution pourrait, dans la mesure du possible, être transposée dans le domaine des conflits de juridictions en retenant la compétence du juge du contrat projeté
The doctoral dissertation proposes to abolish, for the purpose of private international law, the compartmentalisation of the pre-contractual phase by adopting a unitary approach to the contract formation process. In this perspective, it is proposed to overcome the distinction between unformal pre-contractual relations and pre-contractual relations formalized by a preparatory contract, as well as the distinction between the pre-contractual phase and the final contract. The attraction of the intended contract leads to use its connecting factor in order to determine the law applicable to pre-contractual relations. This option could, whenever possible, be extended to conflicts of jurisdictions by considering that the competent judge is the judge of the intended contract

A set method of determination of the fair value of shares is omitted from s164 of the South African Companies Act 71 of 2008 (the South African Act), which deals with the appraisal remedies of dissenting shareholders. This dissertation will consider how courts in the United Kingdom and the United States have dealt with the question of what is fair value in the context of oppression remedies and appraisal rights

In order to understand the processes involved in water and steam floods during secondary and enhanced oil recover, waste disposal, in-situ mining and leaching, or many different types of geological phenomenona, the chemical interactions between the fluid and the surrounding minerals must be known as a function of pressure, temperature and composition. These systems are generally open systems, thus the changes in pressure, temperature and bulk composition are coupled to the chemical reactions occurring throughout the entire system and cannot be independently specified. Based on the equations of mass action and mass balance, further equations have been derived which allow chemical reactions between a fluid and solid phases to be evaluated. The equations are based on the derivatives of the mass action and mass balance equations with respect to time, and are used in a series expansion to predict the composition of the fluid and the solid phases at future times. The equations are coupled to those constraining pressure, temperature and mass flux-which have been modified to allow this coupling. Because of various limitations on many of the equations used, only a single fluid in porous media can be modelled. A computer program has been written to test the equations and concepts developed in this thesis. The results allow the following generalization for natural flow systems with decreasing pressure and temperature along the flow path to be made. Excluding systems with sufficient mechanical energy to create new flow paths and excluding all phases which exhibit decreasing solubility with increasing temperature or with decreasing pressure, every natural flow system which attempts to maintain equilibrium between the fluid and solid phases in contact with the fluid will ultimately seal itself.
Science, Faculty of
Earth, Ocean and Atmospheric Sciences, Department of
Graduate

The thesis focused on how the advent of children's rights, in particular the Convention on the Rights of the Child (CRC), has impacted on the subject of juvenile justice and embarked on a practical examination of law reform in this regard in an African context. The focus was placed on a number of African countries that have embarked on or completed child law reform in the aftermath of ratification of the CRC. The case studies in this thesis were Ghana (1998-2003), Kenya (1993-2001), Namibia (1994 to date), Lesotho (2003 to date), South Africa (1997 to date) and Uganda (1992-1996).

The research problem in this study was to analyse how the new constitutional, legal and political arrangements have influenced public policy-making in the department of labour with specific reference to the Employment Equity Act. To achieve this objective a theory for analysing policy–making process was presented. Corporatist theory is based on the following assumptions: Public policy is shaped by interaction between the state and interest groups. The state licences behaviour of interested organizations by attributing public status to them Policy-making is based on interest groups bargaining across a broad range of issues. The groups are functionally interdependent to enhance social stability. The groups use consensus in making decisions. Decision-making is centralised, it is done by leaders. The groups are bureaucratic in organization. The groups must be recorgnised by the state so that they can be allowed representation. The research questions that arise are: (1) Who sets the agenda for policy formulation? (2) How is the policy formulated? (3) how are the decisions taken? (4) How is the policy implemented? (5) How is the policy monitored? The objective of this study analyse how constitutional, legal and political changes have influenced public policy formulation in the Department of Labour with specific reference to the Employment Equity Act. Policy–making processes in the South African arena and factors that led to the promulgation of Employment Equity Act were discussed. This study was a qualitative design. Purposive sampling was used in the selection of five participants who were interviewed. All interviews were transcribed verbatim. Data was analysed as described by Rubin and Rubin (1995:260) The result negated some of the assumptions of corporatist theory and others concurred with the theory. The findings of the study revealed that policy formulation in the Department of Labour is as a result of constitutional, and international conventions obligations. The findings further revealed that policy-information is institutionalised and there are competing interests due to divergent ideological orientations, different social backgrounds; racial differences; different; political beliefs; different class background; different historical backgrounds, and gender differences. (v) The formulation of the act was also characterised by advocacy, adversarism, stereotyping, alliances and consensus. These organisations. were bureaucratic and decisions were centralised. This study recommended a theory and the theory postulates that “public policy is the product of the social, economic, political, cultural, technolergical, and natural conditions of a given society in a particular epoch or period in the historical development of the particular nation or society and is influenced by dominant national and international forces and these influences may be cultural, economically, social, politically, technological, and type and system of government.

Le Traité pour l'Harmonisation en Afrique du droit des affaires a été signé à Port Louis (ÎleMaurice), le 17 octobre 1993 et, entré en vigueur le 18 septembre 1998. Il a été modifié par le Traité deQuébec en date du 17 octobre 2008. Ce traité révisé est entré en vigueur le 21 mars 2010. Il a pour principalobjectif de remédier à l'insécurité juridique et judiciaire existant dans les États parties. Pour ce faire, il aadopté neuf Actes uniformes dont l'Acte uniforme relatif au droit commercial général, ci-après l'AUDCG quifait l'objet de notre étude.Le Traité OHADA a également institué une Cour commune de justice et d'arbitragechargée de l'interprétation et de l'application uniformes desdits actes. L'AUDCG a été adopté le 17 avril 1997et est entré en vigueur le 1er janvier 1998. Il a été modifié le 15 décembre 2010 et publié au Journal Officielde l'OHADA, le 15 février 2011. Il est entré en vigueur le 15 mai 2011.Il est applicable de la même façondans tous les États contractants. L'existence d'un tel corpus de règles permet de réduire l'importance du fordans la résolution des litiges internationaux et de limiter la nécessité de recourir aux règles de conflits quigénèrent une certaine insécurité juridique. C’est la raison pour laquelle le droit OHADA de manière généraleet l'AUDCG en particulier ne se préoccupe pas ou peu des conflits de lois. Pourtant,les conflits de loissubsistent dans l’espace OHADA. D’une part, l'AUDCG laisse subsister les dispositions du droit national dumoment qu'elles ne lui sont pas contraires.L'AUDCG peut également faire l'objet de divergencesd'interprétations par les juridictions nationales qui sont les juridictions de droit commun du droitharmonisé.Tout conflit d'interprétation est un conflit de lois. D'autre part, l'AUDCG s'insère dans un contextenormatif international caractérisé par une profusion de règles matérielles sous-régionales telles que l'UnionÉconomique et Monétaire de l'Afrique de l'Ouest (UEMOA),la Communauté Économique des États del'Afrique de l'Ouest (CEDEAO), la Communauté Économique et Monétaire de l'Afrique Centrale(CEMAC)et internationales de droit matériel tels que la CVIM, le Protocole du 11 avril 1980 et la Convention de New-York du 14 juin 1974 relatifs à la prescription en matière de vente internationale de marchandises, laConvention de Genève sur la représentation en matière de vente internationale de marchandises. De cetteimbrication de règles de droit naissent des conflits. Il persiste donc dans l'AUDCG des conflits de lois et desconflits de normes supranationales.La présente thèse a pour but d'étudier ces conflits ainsi que les principes de solutions qu'il convient d'yappliquer à travers les règles de conflit de lois, les Principes d'Unidroit, la loi d'autonomie, l'arbitrage
The Treaty for Business Law in Africa Harmonization was signed in Port Louis (Mauritius ) ,October 17, 1993 and entered into force on 18 September 1998. It was amended by the Treaty of Quebec on17 October 2008. This revised treaty entered into force March 21, 2010. The treaty 's main objective is toaddress the legal uncertainty and judicial existing in States parties . To do this , it adopted new Uniform Actsincluding the Uniform Act relating to general commercial law, following the AUDCG which is the subject ofour study. The OHADA Treaty has also established a Joint Court of Justice and Arbitration responsible forthe interpretation and uniform application of those acts .The AUDCG was adopted April 17, 1997 and entered into force on 1 January 1998. It was amendedDecember 15, 2010 and published in the Official Gazette of OHADA , February 15 , 2011. It entered intoforce on 15 May 2011. It is applicable in the same way in all Contracting States. The existence of such a setof rules to reduce the importance of the forum in the resolution of international disputes and reduce the needto resort to conflict rules that generate legal uncertainty. That is why OHADA law so general and especiallyAUDCG does not care or whatever conflict of laws.Yet the conflict of laws remain in OHADA . First, the AUDCG leaves the provisions of national law as longas they are not contrary to it. The AUDCG may also be subject to differing interpretations by national courtswhich are the ordinary courts of harmonized law.Furthermore, the AUDCG is part of an international legislative context involving a wealth of substantiverules subregional such as West Africa 's Economic and Monetary Union (UEMOA) , the EconomicCommunity of States of West Africa (ECOWAS ) , the Economic and Monetary Community of CentralAfrica (CEMAC) and the Economic Community of Central African States and international substantive lawsuch as the CISG , Protocol of 11 April 1980 and the New York Convention of 14 June 1974 relating to thelimitation period in the international sale of goods .This interweaving of law born of conflict. So AUDCG persists in the conflict of laws and conflict ofsupranational norms .This thesis aims to investigate these conflicts as well as the principles of solutions that these should beapplied through the conflict of laws rules , the UNIDROIT Principles of the law of autonomy, arbitration

This study has covered the duty to provide pre-contractual information and the right of cancellation, the two important key areas of consumer protection in distance selling contracts. These two protection models are invented to rebalance the distance contract in favour of the consumer albeit differently. The duty to provide information rebalances the contract in terms of information, and the right of cancellation provides the distance consumer with an opportunity to rethink the decision about the contract. The study has looked at pertinent laws of distance selling contracts in England and Iraq. In doing so, the study has followed comparative and analytical methodology, whereby strengths and weaknesses, similarities and dissimilarities between the selected laws under a chosen theme are addressed. The aim is to explore problems and loopholes, which may need future amendments, including legal gaps, ambiguity, and incomplete treatment. During the study, specific challenges related to the theme of study are critically analysed. Apparently, the quantity and type of information required, the time and manner of sending information, and the remedy available at the breach are challenges of the information requirements. Challenges of the right of cancellation are the conditions and effects of using the right. The study has concluded that many aspects of protection under both laws need further improvements. The need for changes is more obvious with Iraqi Law than English Law, where distance selling protection has not been recognised yet.

Que l’on appréhende le droit uniforme sous l’angle du droit international privé ou que l’on mesure les incidences de la vision communautaire du droit uniforme sur l’évolution du droit international privé des Etats membres, les interactions entre droit uniforme africain et droit international privé peuvent se résumer aux constats suivants. La simple uniformisation du droit entre des Etats se révèle insuffisante à éliminer ou à résorber les conflits de lois et au-delà l’ensemble des difficultés suscitées par l’élément d’extranéité à savoir les conflits de juridictions, la condition des étrangers … Les raisons en sont notamment que l’unification du droit (règles de fond et règles de procédure) n’a jamais pu être totale, des points irréductibles pouvant se révéler insurmontables au stade de la conception des règles uniformes mais aussi l’uniformisation pouvant s’altérer par la suite, lors de son application, du fait de divers facteurs. Les législateurs supranationaux ont donc dû accompagner, le plus souvent, les règles uniformes de fond de règles uniformes de droit international privé de sorte qu’on conclut, en droit uniforme africain, à l’émergence d’un droit international privé d’origine communautaire. Secrété par un droit, lui-même spécifique, se situant à l’intersection du droit international et du droit interne, du droit public et du droit privé, le droit international privé issu du droit uniforme africain sera lui aussi nécessairement spécifique dans sa conception, dans ses méthodes, outils ou instruments même s’il fait preuve à certains égards d’un certain classicisme. Son avènement a bouleversé les assises du droit international privé interne des Etats membres et au delà celles de la discipline du droit international privé elle-même. Toutefois, ce droit international privé, encore en gestation, reste lacunaire dans ses outils et instruments et doit prendre nécessairement appui sur celui des Etats membres comme une nécessité vitale
Either uniform law is seen from the point of view of the private international law or either one assesses the impact of the communal vision of uniform law on the evolution of private international law of member states, the interactions between African uniform law and private international law can all be summed up as follows. A mere unification of laws between some states is not enough to eliminate or solve conflicts of laws and all the difficulties brought about by foreign origin element, such as jurisdiction disputes, foreigners legal status,… The reasons of this situation are that the unification of law (content and procedure rules) has never been total because some indomitable points may prove to be insurmountable at the level of the drafting of uniform rules, but also because the unification of laws can deteriorate further on during its implementation due to various factors. Therefore, the supranational lawmakers have often had to back up the uniform content rules with the uniform rules of private international laws. This leads, in the African uniform law to the emergence of a private international law with a communal origin. The private international law deriving from African uniform law will also be specific in its conception, its methods, its tools or instrument, even if to some extent, it shows some classicism. This is because the private international law deriving from the African uniform law has been fathered by a law which is specific in itself because it stands between international and home law, between public and private law. Its advent has upset the basics of the international home law of member states but also the basics of the private international law itself. However, this private international law which is still in its gestation period still has some weaknesses in its instruments and rules and must necessarily lean on that of member states as it is a vital necessity

Racial and ethnic minorities are disproportionately represented in Portland, Oregon's criminal justice system. Laws, legal procedures and practices that excessively target minorities are not new phenomena. This study focused on a history of political and social conditions in Oregon, and subsequently, Portland, from the 1840' s to 1895, that created unjust state laws and city ordinances that adversely impacted Native Americans, African Americans, and Chinese Immigrants. Attention was also given to the Jewish population. The approach was to examine available arrest and court records from Oregon's and Portland's early beginnings to ascertain what qualitative information records could provide regarding the treatment of minorities by the justice system. As an outgrowth of this observation, it was necessary to obtain an understanding of the legal environment related to arrests and dispositions of adjudications. Finally, a review of the political and social atmosphere during the time period provided a look at the framework that shaped public attitudes and civic actions. Examination of available arrest records and court records recorded during the period were conducted at the City of Portland's Stanley Paar Archives. Observations were limited to the availability of archive records. Oregon's history, relative legislation, Portland's history and applicable ordinances were studied and extrapolated from valid secondary resources. Political and social conditions were reviewed through newspaper accounts during recorded history from that time period. Research indicated that Native Americans, African Americans and Chinese Immigrants were: not legally afforded equal access to Oregon land provisions; denied equitable treatment under the law in comparison to their white counterparts; were unjustly targeted for criminal activities by the enactment and enforcement of laws based on racist views; and, negatively used as political ploys to the advantage of candidates seeking public office. Much of this research is akin to actions in many political, legal and justice arenas of the 1990' s, that continue to adversely impact racial/ethnic minorities unfairly. Although members of the Jewish community were not negatively affected by law, they suffered social injustices. However, they were members of the legal and political fiber that shaped civic sentiments and legislative action in both positive and negative ways.

Up to date, sludge filterability has been characterized by the Ruth&rsquo
s classical filtration theory and quantified by the well-known parameter specific cake resistance (SCR). However, the complexity of the actual phenomenon is clearly underestimated by the classical filtration theory and SCR is often not satisfactory in describing filterability. Although many scientific studies were conducted for a better analysis and understanding of the filtration theory, still a practically applicable solution to replace the classical theory for a better description of filterability has not been proposed yet. In the present study, blocking filtration laws proposed by Hermans and Bredé
e, dating back to 1936, which have been extensively used in the membrane literature for the analysis of fouling phenomenon and the multiphase filtration theory developed by Willis and Tosun (1980) highlighting the importance of the cake-septum interface in determining the overall filtration rate have been adopted for the analysis of filterability of sludge systems. Firstly, the inadequacy of the classical filtration theory in characterizing the filterability of real sludge systems and also the lack of the currently used methodology in simulating filtration operation was highlighted. Secondly, to better understand the effect of slurry characteristics and operational conditions on filtration, model slurries of spherical and incompressible Meliodent particles were formed. Finally, a methodology was developed with the gathered filtration data to assess the filterability of the sludge systems by both theories. The results clearly show that both approaches were superior to the classical approach in terms of characterizing the filterability of sludge systems. While blocking laws yielded a slurry specific characterization parameter to replace the commonly used SCR, the multiphase theory provided a better understanding of the physical reality of the overall process.

Thesis (MBA (Business Management))--University of Stellenbosch, 2009.
ENGLISH ABSTRACT: The King II Report on Corporate Governance reported that the 19th Century saw the foundations laid for modern corporations, this was the century of the entrepreneur. The 20th Century became the century of management and that the 21st Century promises to be a century of governance, as the focus swings to the legitimacy and the effectiveness of the wielding of power over corporate entities worldwide. South Africa has come a long way since the companies reform project was formally launched in 2004 when the Department of Trade and Industry published the guidelines for corporate law reform in South Africa. Most critics believe that the new Companies Act is long overdue and will contribute to South Africa’s economic growth and align us with international standards and practices. The aim of this research report is to educate directors and potential directors on the most significant changes brought by the new Act and the responsibilities and liabilities of directors as set out in The King II Report.
AFRIKAANSE OPSOMMING: Volgens die King II Report is die fondasie vir moderne korporasies gedurende die 19de eeu gelê – die eeu van die entrepreneur. Die 20ste eeu het die eeu van bestuur geword, terwyl die 21ste eeu beloof om ‘n eeu van beheer te wees soos wat die fokus verskuif na die geldigheid en die effektiewe beheer van mag oor korporatiewe entiteite wêreldwyd. Suid-Afrika het ‘n lang pad gestap sedert die Maatskappye-hervormingsprojek formeel geloods is in 2004 met publikasie van die Departement van Handel en Nywerheid se riglyne oor korporatiewe regshervorming in Suid-Afrika. Die nuwe Maatskappye wet is lankverwag en meeste kritici glo dat dit sal bydra tot ekonomiese groei in Suid-Afrika en Suid-Afrika in lyn sal plaas met internasionale standaarde en praktyke. Die doel van hierdie navorsingsverslag is om direkteure en potensiele direkteure in te lig omtrent die mees noemenswaardige veranderinge wat deur die nuwe Maatskappye wet daargestel sal word asook die verantwoordelikhede en aanspreeklikheid van direkteure soos uiteengesit in die King II Report.

L’internationalisation de la consommation de produits ou services est un phénomène qui peut être observé dans les pays développés, comme la France, mais aussi, en grande mesure, dans les pays en voie de développement comme le Brésil. Cette internationalisation a des effets importants sur la protection du consommateur, considéré dans la plupart des pays comme une partie faible qui mérite protection. Cette internationalisation soulève aussi des questions intéressantes de droit international privé. Dans ce travail, nous allons étudier les questions liées à la détermination de la juridiction compétente et celle de la loi applicable à ces contrats, depuis la perspective du droit français et du droit brésilien
The internationalization of the consumption of products and services is a phenomenon that can be seen in developed countries, like the case of France, but also to a large extent in developing countries like Brazil. Such internationalization has important implications for the protection of consumers, which are considered in most countries as a weak party that deserves to be protected. This internationalization also raises interesting private international law issues. In this work, we will study the issues related to the determination of the competent jurisdiction and the law applicable to such contracts, from both the French and the Brazilian law perspectives

La réparation des dommages environnementaux en droit international concerne le droit international public et le droit international privé. Considérant qu’une réparation efficiente des dommages environnementaux est difficilement réalisable par le seul biais du droit international public, la méthode du droit international privé contribue à une meilleure réparation des dommages. La limite du droit international public est liée à la difficulté d’harmoniser les règles matérielles environnementales dans les cadres nationaux, régionaux et internationaux. Une autre raison est le faible contrôle du déplacement des entreprises ainsi que la difficulté de les rendre responsables pour les dommages environnementaux commis. Le droit international de l’environnement nécessite un ensemble d’outils juridiques, publics et privés, ayant comme objectif la protection de l’environnement. Les outils publics comme les traités et les mécanismes de surveillance institutionnalisés doivent opérer en complémentarité avec les outils privés comme la responsabilité civile et l’arbitrage privé. L’utilisation du droit international privé permet d’organiser un ensemble de normes appartenant à différents espaces juridiques. Cette méthode permet l’utilisation, dans un Etat, de mesures juridiques prévues dans le système juridique d’un autre État sans qu’une uniformité ne soit exigée. Le droit international privé, par le biais d’une fonction environnementale accordée aux règles de conflit de lois et de juridictions, conduit à une meilleure interaction entre les espaces normatifs et entre les différentes branches du droit, ce qui favorise une coopération plus efficace pour la protection de l’environnement
The reparation of environmental damages in international law concerns public and private international law. Due to the fact that efficient reparation of environmental damages is hardly achieved only by public international law, private international law methods can be used to fill the gaps of the former law field. Public international law limits are related to the difficulty of harmonising substantial environmental rules on national, regional and international context. Another reason is that it is hard to control company’s international movements and to hold them liable for damages committed. International environmental law depends on some public and private legal instruments in order to protect the environment. Public instruments such as treaties and Secretariats' mechanisms of control must work jointly with private instruments such as liability and arbitration. Private international law application is useful to organise rules from different legal orders. This methode enables the use of legal measures of one State in another State without looking for uniformity. Private international law, by the environmental function of conflict of laws and conflict of jurisdictions rules, paves the way towards a better interaction between different normative orders and between different law fields. It leads to a more effective cooperation for environmental protection

Responsabilité du fait du produit c’est le nom, donné à un domaine de droit concernant la responsabilité des personnes qui s’occupent à fabriquer et vendre ou distribuer par d’autres moyens des produits pour les différents sorts des dommages causés aux consommateurs et même aux tierces personnes par les défauts de sécurité de ces produits. Cette responsabilité est une responsabilité sans faute qui va au-delà distinction traditionnelle entre la responsabilité contractuelle ou extra-contractuelle. Il existe différents modèles de la responsabilité du fait des produits défectueux dans le monde. Parmi eux le droit américain et le droit européen de la responsabilité du fait des produits sont particulièrement significatifs. Aux Etats-Unis la section 402A de la seconde restatement of torts déterminait le régime de la responsabilité du fait des produits. En 1998 l’institut de droit américain a publié la troisième restatement of torts sous le nom de la responsabilité du fait des produits, ce qui est censé de remplacer la section 402A de la seconde restatement of torts. En Europe, la directive communautaire numéro (85/374/CEE) du conseil du 25 juillet 1985 relative au rapprochement des dispositions législatives, réglementaires et administratives des États membres en matière de responsabilité du fait des produits défectueux constitue le droit spécial des états membres en matière de la responsabilité du fait des produits défectueux. Cette directive a été transposée en droit français par la loi du 19 mai 1998 sous la forme des articles 1386-1 à 1386-18 du code civil français. La faute constitue la seule base légale de la responsabilité civile des vendeurs et des fabricants des produits défectueux en droit iranien. Pour résoudre les conflits de lois et des juridictions qui résultent de l’exportation de produits au niveau international on peut mettre œuvre les conventions et les règlements internationales qui ont été élaborées en la matière ainsi que le droit commun des conflits des lois et des juridictions des pays
Products liability is the name of a field of law concerning the liability of persons who are engaged in the business of selling or otherwise distributing products who sell or distribute a defective product for harm to persons or property caused by the defect. They are strictly liable. Their liability is a kind of liability which goes beyond the traditional distinction between the contractual and tortious liability. The United-States of America and European Union have the most developed products liability laws in the world. In the United-States the American Law Institute memorialized precedential rule of strict products liability in tort in §402A of the Second Restatement of Torts, and officially promulgated it in 1965. In 1992, the American Law Institute began working on a new Restatement (Third) of Torts on the specific topic of products liability law, approving the new Restatement in 1997 and publishing it in 1998 as The Restatement (Third) of Torts: Products Liability. In Europe, Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC) constitutes specific law of products liability of European Union member states. This directive has been transposed in French law by 19 May 1998 act and formed articles 1386-1 to 1386-18 of civil code. Fault is the only legal basis of Iranian products liability law. For solving conflicts of laws and jurisdictions which arise from international trade of products and determining the applicable law and competent jurisdiction we can implement international conventions and regulations which have been elaborated on this subject as well as traditional rules of conflicts of laws and jurisdictions of the countries

Pendant longtemps, la qualification lege fori a dominé la scène internationale. D'une conception stricte, témoin d'une analyse particulariste du droit international privé, elle a progressivement évolué vers une conception assouplie. Aujourd'hui, les auteurs s'accordent à voir dans la qualification lege fori, une méthode de qualification appropriée. Confrontée au droit des obligations, la qualification lege fori révèle ses faiblesses. Elle est atteinte d'un vice originel qui implique de s'interroger sur son bien-fondé. Même assouplie, la qualification lege fori est incapable de se détacher des concepts du for. Une situation internationale sera donc résolue selon des concepts dictés pour les besoins du droit interne. Ces insuffisances s'observent à l'étude de cas hybrides. Il s'agit d'hypothèses particulièrement délicates à qualifier car elles se situent à la lisière de la matière contractuelle et de la matière délictuelle. La présente étude se propose de rechercher un modèle de qualification qui puisse répondre à la fonction internationale de la règle à appliquer. À côté de la qualification lege fori, il existe une appréhension européenne de la qualification. Celle-ci s'organise autour de l'élaboration de qualifications autonomes, a priori distinctes de la qualification lege fori. La Cour de justice a ainsi opté pour une qualification autonome des notions de matière contractuelle et de matière délictuelle. Confrontée à la qualification lege fori, la qualification autonome révèle sa véritable nature. Sous certains aspects, elle est une forme de qualification lege fori. Sous un autre angle, elle s'en éloigne et peut être analysée comme une véritable qualification internationale. Contrairement à la qualification lege fori, la qualification autonome répond à la fonction internationale de la règle de droit international privé. Elle est donc adaptée aux besoins de la vie internationale. Une fois le bien-fondé de l'approche autonome posée, il était nécessaire de s'interroger sur sa généralisation. En effet, l'adoption d'un ensemble complet de textes en droit international privé européen des obligations a fait émerger un débat sur l'opportunité d'adopter une qualification unitaire des notions communes aux textes de Bruxelles et de Rome. La présente étude se propose de retenir un modèle autonome et moniste de la qualification borné aux seules relations internationales
For a long time, the lege fori characterisation has dominated the international scene. It has evolved from a strict conception, witness of a particularistic approach of private international law, towards a more flexible conception. Nowadays, authors accept the lege fori characterisation as an appropriate characterisation method. Faced with the law of obligations, the lege fori characterisation shows its weaknesses. It is suffering from an original defect which prompts interrogations on its merits. Even relaxed, the lege fori characterisation cannot be detached from the concepts of the lex fori. An international situation will therefore be resolved according to concepts dictated based on the needs of the law of the forum. Such inadequacies can be observed when studying hybrid cases. Hybrid cases hypotheses are extremely difficult to classify as they stand on the border between matters relating to tort/delict and matters relating to contracts. The present study will search for a characterisation model able to fulfil the international function of the rule to apply. A European understanding of characterisation exists beside the lege fori characterisation. It revolves around the elaboration of autonomous characterisations, in principle distinct from the lege fori characterisation. The European Court of Justice chose an autonomous characterisation for the notions of matter relating to contract and matter relating to tort/delict. Faced with the lege fori characterisation, the autonomous characterisation reveals its true nature. In some respects, it is a type of lege fori characterisation. From another perspective, it diverges from it and can be interpreted as a true international characterisation. Unlike the lege fori characterisation, the autonomous characterisation fulfils the international function of the private international law rule. Therefore, it is suitable to the needs of international affairs. Once the merits of the autonomous approach have been established, it is necessary to consider whether it can be generalized or not. Indeed, the adoption of a complete set of rules in European private international law relating to contractual and non-contractual obligations highlights a debate on the opportunity to adopt a unitary characterisation for the common notions of the Rome and Brussels Conventions and Regulations. The present study suggests to consider an autonomous and monistic model for characterisation but only to the extent international relations are involved

Le droit administratif coréen se trouve caractérisé depuis peu par une tentative d'adoption du droit du service public. Cette tentative signifie un mouvement pour faire évoluer le droit administratif par le dépasse-ment de ses fondements classiques en provenance du droit allemand, notamment des doctrines fondamentales élaborées à la fin du 19ème siècle. La tentative se manifeste par l'introduction de règles générales pour les activités du service public. Cependant, la mise en œuvre de ces règles novatrices pour le droit coréen ne sera cohérente que lorsque certaines conditions seront satisfaites, notamment des conditions procédurales telle que l'élargissement de la recevabilité du contentieux administratif. Nous avons relevé des éléments dont on doit tenir compte pour le changement du droit administratif coréen par l'adoption du droit du service public français afin que l'adoption soit opérationnelle. Cette démarche est fondée sur l'analyse de l'état actuel du droit coréen concernant l'idée de service public et les juridictions publiques
Korean administrative law is characterized recently by an attempt to adopt the law of public service. This means a movement attempting to change the administrative law by exceeding its classical foundations from German law, including fundamental doctrines developed in the late 19th century. The attempt is mani-fested by the introduction of general rules for public service activities. However, the implementation of these innovative rules for Korean law will be consistent only when certain conditions are met, including procedu-ral requirements such as enlargement of the admissibility of administrative litigation. We identified elements that must be considered for change of Korean administrative law by adoption of the French law of public ser-vice se that it could be operational. This approach is based on the analysis of the current state of Korean law regarding the idea of public service and public jurisdictions

Thesis (M. S.)--Mechanical Engineering, Georgia Institute of Technology, 2005.
David N. Ku, Committee Chair ; Alexander Rachev, Committee Co-Chair ; Elliot L. Chaikof, Committee Member. Includes bibliographical references.

Le droit international privé français des contrats est très avancé, la richesse de la jurisprudence et la doctrine font une bonne preuve de l'évolution du droit français en la matière. Ses conceptions sont répandues et admises par d'autres États, européens en premier lieu, puis dans le monde entier. Le système de droit français et celui de droit communautaire sont complémentaires l'un et l'autre. Pour cette raison l'étude de droit international privé français ne peut plus être restreinte uniquement dans le cadre de droit international commun. Dés lors le droit international privé communautaire devrait aussifaire l'objet de cette étude. Quant au droit international privé des contrats thaïlandais, il est en cours de développement et a besoin de grande réformation urgent pour la coopération juridique dans l'ASEAN. L'étude comparative en cette matière permettrait donc de trouver la bonne solution et d'apprendre l'application de règles conflictuelles ainsi que d'autres mécanismes du droit international privé pour régler les problèmes dans l'ordre juridique thaï. Donc les questions de la loi applicable et le règlement des différends font l'objet principal de cette étude.

Nous sommes aujourd'hui face à un incontestable déclin du critère de la nationalité en droit international privé. À l'heure de la mobilité croissante des personnes et de l'essor des autres critères de rattachement, il nous faut faire le constat de la marginalisation de la nationalité, pourtant considérée pendant longtemps comme la principale notion en matière de statut personnel, une marginalisation confirmée par les règlements européens et la jurisprudence. Face aux changements dans ce domaine et aux incertitudes qui y sont liées, il est nécessaire d'analyser ces données afin de pouvoir procéder à un bilan et d'énoncer des résolutions pour l'avenir. En effet, l'évolution du droit international privé a conduit à privilégier de nouveaux critères de rattachement, considérés comme plus efficaces et moins discriminatoires que la nationalité, qui sont ainsi plébiscités par le législateur et les juges européens. Il s'agit tout d'abord des critères territorialistes, et particulièrement de la résidence habituelle qui est devenue le rattachement principal, pour la plupart des textes européens, en matière de divorce, de responsabilité parentale ou encore de régime des incapables. L'importance donnée aux individus, reconnus en tant que quasi-sujets de droit international, résultant de l'intervention des droits de l'homme, apparaît comme le principal facteur du déclin de la nationalité. Le principe de non-discrimination et la prise en compte de la volonté des parties, jusqu'à leur désunion et leurs successions, illustrent cet état de fait. Il s'agit alors de savoir, à la lumière des réflexions sur ces nouveaux paradigmes, s'il est encore possible de reconsidérer le rattachement des personnes en revalorisant le critère de la nationalité dans certains domaines, comme cela a été suggéré dernièrement en droit des successions. Nous proposons ainsi une méthodologie permettant aussi bien dans le conflit de lois que dans le conflit de juridictions de déterminer les raisons du déclin de la nationalité. Nous menons également une réflexion sur son irrévocabilité en droit international privé
The decline of the nationality in private international law is nowadays an undeniable reality. The impact of an almost unconditional mobility of European citizens and the emergence of other connecting factors in the personal law result in the weakening of the nationality link, despite its historical role in determining the law applied to an individual. The weakening is confirmed by the modern European legislation and case law. This study seems essential to understand the foundations of nationality as the connecting factor and takes into account the important changes of the nationality and its uncertainty. Indeed, the evolution of the European private international law led to the switch of the connecting factor from nationality toward territorial nexuses. Particular significance is put on the nexus of habitual residence, which is considered to be more efficient and less discriminatory, and is retained by the main European regulations and judgments, not only in case of international divorces or parental authority, but also according to such matters as legal capacity. Furthermore, the superiority of human rights appears to be the essential reason for the acknowledgement of individuals as the quasi-subjects of international law, which resulted in the decline of nationality as a connecting factor. Consequently, the principles of non-discrimination and personal autonomy impact the further fields of personal law, e.g. disunion and heritage. In the light of these new paradigms, it should be questioned if it is possible to overcome the decadence of the nationality and authorize its part in some matters of the European private international law, as it was regulated in the new heritage European regulation. For these reasons, this study propose a methodology that determines the reasons of the fall of nationality as the nexus of the private international law, both in the conflict of laws and in the conflict of jurisdictions, and provides some reflections on its irreversibility

With discussion of Indigenous laws on the rise in Canada, this thesis explores the question of law’s power: jurisdiction. In this project, I ask whether Indigenous jurisdiction is active in conflicts between Indigenous and state actors over the environment, in the context of the Heiltsuk Nation on the central coast of British Columbia. This project looks to critical legal theory for an understanding of jurisdiction. It identifies three aspects of jurisdiction that are discussed in critical legal theory and related fields: that it is technical, it is authoritative, and it is spatial. Adopting these qualities as provisional indicators of jurisdiction, it applies thefzm to three case studies of Heiltsuk (or “Haíɫzaqv”) conflicts with the state, which engage colonial law in different ways. The three case studies concern (1) herring harvest and management, which was litigated in R v Gladstone; (2) land use and forestry, which is the subject of the Great Bear Rainforest agreements; and (3) trophy hunting for bears, which is the subject of a grassroots campaign based on Indigenous law. Adopting a qualitative approach adapted from institutional ethnography, this project applies a critical jurisdictional lens to each case study, using documentary review and interviews to explore the technical, authoritative, and spatial aspects of each conflict. Ultimately, I find that expressions of Heiltsuk jurisdiction – as understood from a colonial, critical perspective – are already at play in each conflict, although this is not immediately visible from the point of view of colonial law. In the conclusion, I explore the different manifestations and strategies of Heiltsuk jurisdictional expressions, and the ways that colonial jurisdiction interacts with them.
Graduate
2021-12-19

LL.M. (International Commercial Law)
The main exploration of this paper is whether a breach of contract as a ground for jurisdiction is sufficient for a court in England or South Africa to exercise jurisdiction. This question seems straightforward in England, but not so much in South Africa. England enacted their Civil Procedure Rules to make provision for a court to exercise jurisdiction when a plaintiff who is in England wants to sue a foreign defendant in England.1 The breach of contract must occur in the jurisdiction before an English court will permit service out of the jurisdiction. South Africa’s laws on jurisdiction are derived from Roman law.2 A foreign peregrinus may sue in South Africa either where the incola is domiciled or resident or where the cause of action arises. Breach of contract is allowed in this circumstance. It is necessary for an incola plaintiff to attach property of a foreign peregrinus defendant when he wants to sue the foreign peregrinus in a South African court. This may be done where the attachment founds jurisdiction of the court, ie where the incola sues in the area where he is domiciled or resides, or where the attachment confirms the jurisdiction of the court, ie where the cause of action arises. The cause of action in relation to contracts includes the conclusion of the contract or the performance of the contract in the jurisdiction if the plaintiff sues where the cause of action arises and not where the plaintiff is domiciled or resident. The matter of whether a breach of contract can be regarded as a ratio jurisdictionis is seldom approached by South African courts. In Natal, courts allowed attachment of the defendant’s properties where there were no rationes jurisdictionis...

South African company law is currently the object of comprehensive review. One o f the areas under scrutiny is that of corporate governance. Control over management is vital in the interests of the company itself, its shareholders and its creditors. Effective accountability should be balanced against the need to allow those who manage a certain measure of freedom and discretion in the exercise of their function. Company directors are subject to various duties. This thesis concentrates on their fiduciary obligation. It is suggested that this sui generis obligation is owed to the company as a separate entity. Interests of other groups may sometimes merit con­ sideration. Against the background o f a com parative investigation, a "corporate opportunity" is defined as any property or economic opportunity to which the com­ pany has a claim. South African law protects a company’s claim to an opportunity if it is in the company’s line of business and if the company has justifiably been relying upon the director(s) to acquire it or to assist in its acquisition for the company. The application of established fiduciary principles suffice to resolve corporate opportunity matters. Essentially the application o f these rules amount to a determination whether the director has complied with his fundamental duty to act in the company’s best interests. There seems to be no need for a separate doctrine of corporate opportunities.' A director should only be absolved from liability on account of the company’s inability to pursue an opportunity or its rejection by the company if there was no real conflict of interest. The appropriation of corporate opportunities should not be ratifiable, both because the ratification constitutes a fraud on the minority, and because the decision to ratify cannot be regarded as being in the interests of the company. The relationship between the appropriation of corporate opportunities, misuse of confidential information and competition is investigated. These aspects fre­ quently overlap, but should be distinguished because their bases, and accordingly their appropriate remedies, may differ. Effective control may benefit by a restatement of directors’ fiduciary duties in the Companies Act. To this end certain amendments to the Act are recommended.
Mercantile Law
LLD

International police co-operation is a recipe for success in the fight against transnational organised crime. Such cooperation has never been without challenges, especially in the light of disharmonious national laws. SARPCCO has made promising advances towards the elimination of blockages which hamper police cooperation. The joint, bilateral, simultaneous operations which are continuously carried out and the transferring of skills through training are exemplary to the rest of the world. SARPCCO is, however, struggling to make serious inroads into the organised motor vehicle theft because of the problems in returning them to their lawful owners. The objective of this study is to analyse the laws used by the SARPCCO member countries in fighting motor vehicle theft, transnational organised crime, recoveries, repatriation, prosecution and extradition of offenders. The SARPCCO member countries on which the analysis is done are Lesotho, South Africa, Swaziland and Zambia.
Jurisprudence
LL. M.

MPM
Oliver Tambo Institute of Governance and Policy Studies
The study investigates the management of traffic law in Limpopo Province with specific reference to Vhembe District and explore possible solutions to the challenges facing Vhembe District in the management of traffic law. Road transport safety, particularly enforcement of traffic laws is challenging globally, especially in developing countries, where it affects both road users and governments. Due to a number of reasons the subculture of traffic and other law enforcement agents is not always viewed in a favorable light. Media reports and newspaper articles give evidence of a total disregard for law enforcement and lack of respect for law enforcement officials. The study used both quantitative and qualitative techniques for data collection and analysis. The Quantitative techniques were mostly used in that they provided the researcher with an understanding of experiences and challenges facing traffic officers in the management of traffic law in Limpopo Province with specific reference to Vhembe District. A simple random and purposive sample was used for selection of a sample population. A purposive sampling technique will be employed in selection study participants of qualitative method. A sample of 50 traffic officers was randomly selected for the survey and 10 traffic chiefs and principals were purposively selected for the interviews. The study found that of lack of good managerial skills, lack of motivation to work, shortage of staff, lack of modern equipment and lack of training as challenges. The treatment of traffic offenses as “petty” by the Department of Justice and in particular magistrates was also identified as a major challenge. The study recommends that the Department of Transport Management should provide traffic police officials with sufficient resources and equipment at the traffic police stations in order to perform optimally.
NRF

South African affirmative action law in the workplace is in its infancy. Yet some concepts in this context have already proven to be unclear or in need of interpretation, or are lacking. This thesis focuses on the beneficiaries of affirmative action in employment law. The Employment Equity Act (EEA) creates `designated groups' ─ black people, women and people with disabilities ─ as the beneficiaries of affirmative action. It lays down two requirements for beneficiaries of affirmative action which are investigated: (a) beneficiaries must be from the designated groups - in this regard, the question that arises is whether, having been categorised as disadvantaged, persons are presumed to be de facto disadvantaged and entitled to benefit from affirmative action, or whether further evidence of actual past disadvantage is required; and (b) beneficiaries must be `suitably qualified'. In addition, citizenship as a third requirement for beneficiaries of affirmative action has been mooted in case law. This is evaluated against modern interpretation theory, the Constitution and discrimination law. Against the background of a comparative investigation of the position in the US and Canada, and under international law, specific findings and recommendations are made in respect of South African affirmative action law. These relate to the interpretation of the concept `disadvantage', to a pragmatic and contextualised approach to the notion `degrees of disadvantage', to the recognition of the concept `multiple disadvantage', to the clarification of the meaning and application of the concept `suitably qualified' in a code of good practice, and to a policy decision by government to ensure that affirmative action measures apply mainly to South African citizens who otherwise qualify to benefit. To this end, certain amendments to the EEA, its regulations and codes of good practice are proposed with the aim of ensuring that affirmative action measures in fact benefit those intended by the EEA. Some projections are made to indicate the way forward for affirmative action in South Africa.
Jurisprudence
LL.D.

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

In this work I have used Pierre Bourdieu's concept of habitus as a springboard to examine the Pauline tradition in the light of Zimbabwe-African, cultural, legal and social attitudes to women. I have highlighted the conflict between the practices defined by Zimbabwean Constitutional law regarding the status of women and what is the actual situation on the ground, also considering the role of the church in confronting or conforming to the cultural norms. I have likewise highlighted the conflict in the Pauline tradition where one hand women are given more active roles in the church than could be expected according to the customs of the time, but on the other hand are still bound by an oppressive tradition. I have concluded by suggesting how the church can act in order to break free of this oppressive tradition and bring about change in the habitus of the society.
New Testament
M. Th. (New Testament)

The privatisation and liberalisation of telecommunications throughout the world has resulted in the growing involvement of competition authorities in telecommunications regulation, alongside telecommunications sector-specific regulators. The existence of both sector specific rules and competition rules has brought about a critical institutional challenge. The increased role of competition authorities in the telecommunications sector raises the issue of inconsistent jurisdiction in the sector. Conflicts are therefore inevitable in the absence of clear delineation of jurisdiction. The South African model for regulation in the telecommunications sector entails a sharing of jurisdiction between the sector-specific regulator, the Independent Communications Authority of South Africa (ICASA), and the competition-wide regulator, the Competition Commission. The study thus determines the interplay between the Competition Commission and ICASA as well as the competitiveness of South African telecommunications.
Communication Science
M.A. (International Communication))