Academic literature on the topic 'South Africa. Children's Act, 2005'

Included in the Convention on the Rights of the Child, 1989 (UN Children's Convention) is the right of children to the highest attainable standard of health. In terms of article 4 of the UN Children's Convention, in implementing the UN Children's Convention state parties must "undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention". South Africa showed its commitment to protecting and promoting children's health when it ratified the UN Children's Convention and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to giving legislative effect to the protection and promotion of children's health by promulgating the National Health Act 61 of 2003, the Children's Act 38 of 2005 and the Mental Health Care Act 17 of 2002. The article evaluates existing policy and legislation affecting child health in order to assess how well South African legislation addresses the issue of children's healthcare rights and whether or not it complies with its international law and constitutional obligations in this regard. The article concludes that although much legislation exists, none provides comprehensively for children's healthcare rights, and there are many gaps in existing legislation. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of healthcare services and nutrition. Further, there is a complete lack of legislation which protects the health needs of children with disabilities. In order to ensure that the health rights of children are protected and promoted, we propose more comprehensive legislative protection.

South Africa’s Children’s Act 38 of 2005 requires health professionals to determine whether a child possesses ‘sufficient maturity’ and ‘mental capacity’ to make decisions about themselves in relation to surgery, treatment, and HIV testing. Similarly, the National Health Act 61 of 2003 requires a child to be ‘capable of understanding’ to provide informed consent in research. However, neither the Children’s Act nor the National Health Act defines these terms. Moreover, there is no common definition of ‘sufficient maturity’ among healthcare professionals in South Africa. Appreciating how foreign law interprets ‘mental capacity’ and how different healthcare professionals evaluate ‘maturity’ could prove illuminative in respect to how these terms could be interpreted by health professionals in South Africa, and elsewhere.

As family group conferencing is gaining world-wide recognition as an alternative dispute resolution process, this article aims to outline the origin and relevance of this process, which promotes solution-finding to family problems by the family themselves and/or the social network and usually results in a plan or agreement that will be implemented collaboratively by the people involved. Although it was originally used in child protection matters, the process is now used for a wide range of problems pertaining to families and individual family members, including divorce matters, the illness or death of a family member, the care of the elderly, family financial problems, bullying, addiction cases, domestic violence and child justice matters. The process is also suitable for application in problems concerning any group, neighbourhood or school. Next, the application of family group conferencing in both the Netherlands and South Africa is first examined and then briefly compared. It appears that family group conferencing through Eigen Kracht in the Netherlands is an established practice which consists of a relatively simple and quick process and yields positive results for families/communities experiencing problems. Recently the Dutch Youth Act of 2015 (Jeugdwet) made legislative provision inter alia for a family group plan to be drafted by parents, in conjunction with next-of-kin or others who are part of the social environment of a youth/juvenile person. On the other hand, although extensive legislative provision is made for family group conferencing by the Children's Act 38 of 2005 in children's court proceedings and by the Child Justice Act 75 of 2008 in the child justice system in South Africa, the process has not yet reached its potential in terms of the implementation of the concept. Lastly, some recommendations are made which mainly aim to contribute to the implementation of the concept in South Africa, in that the model will eventually be fully developed and utilised for the benefit of individuals, children, their families and/or social network.

Having ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, South Africa is obliged to adopt legislative measures that criminalise human trafficking and comply with other standards laid down in this international instrument. However, by mid-2011, South Africa had not enacted the required comprehensive counter-trafficking legislation. The question that now arises is if the absence of such anti-trafficking legislation poses an insurmountable obstacle to the prosecution of traffickers for trafficking-related activities. In asking this question the article examines the utilisation of existing crimes in order to prosecute and punish criminal activities committed during the human trafficking process. Firstly, a selection of existing common law and statutory crimes that may often be applicable to trafficking-related activities is mapped out. Secondly, transitional trafficking provisions in the Children's Act 38 of 2005 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are discussed. Finally, since the Prevention and Combating of Trafficking in Persons Bill B7 of 2010 will in all probability be enacted in the near future, the use of other criminal law provisions in human trafficking prosecutions, even after the passing of this bill into law, is reflected upon.

The Children's Act 38 of 2005 provides that children over the age of 12 years can consent to their own medical treatment or that of their children, provided they are of sufficient maturity and have the mental capacity to understand the benefits, risks, social and other implications of the treatment (section 129(2)). The predecessor of the Children's Act set the age at which children could consent to medical treatment at 14 years, and no maturity assessment was required (Child Care Act 74 of 1983 section 39(4)). Children over the age of 12 years can consent to the performance of surgical operations on themselves or their children, provided that they have the level of maturity described above and they are duly assisted by their parents or guardians (Children's Act section 129(3)). Before the Children's Act came into operation, the Child Care Act allowed children over the age of 18 to consent to their own operations (section 39(4)). Neither a maturity assessment nor parental assistance was required. (Note that when the Child Care Act was in operation the majority age was still 21 years.) In this article the question is considered if the relaxation of the limitations on children's capacity to consent to medical treatment and surgical operations in the Children's Act recognises the right of children to make independent decisions without the assistance of their parents or guardians or other substitute decision-makers. Firstly the article investigates the theoretical foundations of the protection of children's rights, particularly their autonomy rights. Secondly the meaning of the concept "competence" in medical decision-making and the related concept of "informed consent" are discussed. Thirdly some developmental and neuroscientific research on children's decision-making capacities and how they influence children's competence to give consent valid in law are highlighted. Fourthly possible legal foundations for the protection of children's right to self-determination in medical decision-making are sought in the Constitution and international and regional human rights treaties. Finally the relevant provisions of the Children's Act are examined in order to ascertain whether children's right to self-determination is sufficiently protected in South African law

Surrogacy agreements help to provide children for persons who cannot achieve conception or carry a child to term themselves. This practice has improved several lives over the years but can also be exploitative for some parties involved, if not adequately regulated.Using the doctrinal research method, this study discusses the rights of children in surrogacy agreements and examines the regulation of the practice in Nigeria and South Africa. This study found that a comprehensive framework regulating surrogacy agreements is lacking in Nigeria, while the practice is regulated in South Africa under Chapter 19 of the Children’s Act 38 of 2005 (Children’s Act). The lack of a legal framework in Nigeria implies that the rights of children born through surrogacy agreements may be violated. Two Bills are however awaiting passage into law in Nigeria.This study thus recommends the enactment of these Bills into one comprehensive law so as to regulate surrogacy agreements effectively in Nigeria and safeguard the well-being of children. Legislation regulating surrogacy agreements in Nigeria should include provisions similar to those found in the Children’s Act of South Africa. Policies that promote the best interests of the child should be adhered to and their rights to know their biological heritage, identity and nationality, and to prevention from harm, should be protected and promoted.

In South Africa marginalised groups have historically been afforded legislative protection in order to ensure that the rights of these groups are respected, protected, promoted and fulfilled. Examples of two such groups are older persons, whose rights are provided for in terms of the Older Persons Act 13 of 2006 and children, whose rights are provided for in terms of the Children's Act 38 of 2005. Persons with disabilities have, however, not yet been the subject of dedicated legislation outlining the content of the rights to which they are entitled. As a result of this lack of dedicated legislation, the rights of persons with disabilities are dealt with in a piecemeal fashion, often in disparate pieces of legislation.In addition to this focus on the rights of persons with disabilities, South African labour law has recently undergone extensive amendments. These amendments have led to the rights of persons with disabilities in the workplace being affected substantially. Since these amendments are as yet untested, little scrutiny of these provisions and the effect they may have on persons with disabilities has been undertaken. This article will thus discuss selected amendments of the labour legislation, and interrogate the practical effect these amendments may have on the rights of such persons. Of particular importance for the purposes of this article is the updating of an existing institution known as Sheltered Employment Factories, as well as the introduction of harsher penalties for employers who remain non-compliant with certain provisions of the Employment Equity Act 55 of 1998.

Both Western-styled mediation and African-styled mediation are practised in South Africa. Each of these models is applied in specific social contexts. In this article a brief explanation of what is meant by the term divorce and family mediation is provided. Thereafter the principles and processes of both Western-styled divorce and family mediation and African-styled group mediation are explored. Attention is given to the roles of mediators in both of these models as well as the ubuntu-styled values found in African group mediation. In Africa, there is a tradition of family neighbourhood negotiation facilitated by elders and an attitude of togetherness in the spirit of humanhood. Both of these show a commitment to the community concerned and a comprehensive view of life. In Africa conflicts are viewed as non-isolated events and are viewed in their social contexts. Not only are consequences for the disputing parties taken into account but also consequences for others in their families. These methods can be found in present-day methods, which are either used independently of imported Western structures or used alternatively to such structures. In this article the concept of mediation circles, as currently found in Western-styled mediation are also covered. Additionally, the provisions of the Children’s Act 38 of 2005 referring to mediation as well as the provisions of the Child Justice Act 75 of 2008 and family group conferencing in the realm of restorative justice in South Africa are critiqued. It is suggested that divorce and family mediation can learn from the principles of restorative justice applied during family group conferencing as well as from African-styled group mediation.

This article analyses the intercountry adoptions provisions contained in Chapter 16 of the Children’s Act 38 of 2005, against the standards of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoptions, 1993. After a brief overview of the two leading South African cases on intercountry adoption, which stress the importance of having this institution statutorily regulated, the author proceeds to analyse the most significant clauses pertaining to intercountry adoptions contained in the Act, in order to identify the strengths and weaknesses in this new statutory framework. The author concludes that the Children’s Act is a dramatic improvement on the current regime of intercountry adoptions and that it has the potential to make this institution work in the best interests of children.

The intention of the South African Children’s Act 38 of 2005 is to provide guarantees for the protection and promotion of optimum health and social outcomes for all children. These guarantees are the provision of basic nutrition, basic health care and social services, optimal family or parental care, as well as protection from maltreatment, neglect and abuse services. However, despite these guarantees, child and maternal mortality remain high in South Africa. The literature identifies maternal depression as a common factor that contributes to negative health and social outcomes for both mothers and their children. Despite the availability of easy-to-use tools, routine screening for maternal depression is not carried out in public health services, which is the source of services for the majority of women in South Africa. The results are that the mothers miss out on being diagnosed and treated for maternal depression, which results in negative child outcomes, such as malnutrition, as well as impacts on mental, social and physical health, and even death. The long-term impacts of untreated maternal depression include compromised child cognitive development, language acquisition and deviant behaviors and economic disadvantage in later life. The author concludes that the neglect of screening for, and treatment of maternal depression therefore violates the constitutional rights of the affected children, and goes against the spirit of the Constitution. The author recommends that maternal and child health services integrate routine screening for maternal depression, which will not only satisfy the Constitutional mandate, but also improve the health and developmental outcomes of the children and reduce child mortality.

The aim of this study was to evaluate the role played by CYCCs to provide support and protection to children who have been found to be in need of care, according to the criteria given in the Children’s Act No. 38/2005 as amended. The study made use of a qualitative approach and the research design was provided by the case study. Data was gathered by means of semi-structured interviews and focus group discussions. The most important findings to emerge from the study were that the factors which affect the operation of CYCCs are either institutional, or else challenges arising from issues pertaining to infrastructure and human resources. However, it was also acknowledged that, despite the challenges which affect their ability to provide their services to young people, the CYCCs had also made progressive steps to halt the suppression of the fundamental rights of children. It has been recommended that the government should apply comprehensive funding to the objectives of the Children’s Act, which would entail increasing the subsidies to CYCCs. It has also been recommended that the Policy on Financial Rewards should call for the same benefits and salary scales to apply for professional staff working in the government and to those working in the CYCCs. The repercussions from failing to adjust to these recommendations will inevitably lead to the employment of a remedial model of care.

Includes bibliographical references (p. 82-86).
The purpose of this study is to explore the information that the mothers of disabled children have on the provisions of the Children's Act (CA) (Act no.38 of 2005) and the Children's Amendment Act (CAA) (Act No.41 of 2007). The two Acts were consolidated after the regulations had been adopted. The Children's Act gives effect to the three specific constitutional rights of children contained in section 28. These are: a. The right to social services. b. The right to parental or family care or to appropriate alternative care when removed from their family. c. Protection from maltreatment, neglect, abuse or degradation. This Act stipulates the services that are required to give effect to the three State obligations. The aim of the research was 1) to investigate the nature of information which mothers of disabled children have acquired about the Children's Act, and 2) factors influencing the access to this information by these mothers. The study population was mothers whose children have a physical or mental disability. The study sample was purposively selected from mothers of disabled children living in a township in Ekurhuleni Metropolitan, in Gauteng Province. A qualitative research approach was used in this study, and a case study design was adopted. Individual in-depth interviews were held with four participants. The data collected through the in-depth interviews was analysed using a thematic content analysis. The findings of this study will raise awareness among mothers of disabled children and their organizations of the rights and services to which disabled children are entitled according to the Children's Act. It will therefore enable them individually and through DPOs to more effectivity monitor the implementation of the Act by the State and to enforce compliance by the State of its obligations to disabled children in terms of the Children's Act.

In this study the focus is on the implementation of the Children’s Act in mainstream schools. The Children’s Act mandates that all children who are in need of care both in school and out of school should be taken care of and be protected. However, they are often not afforded the full opportunity to enjoy the benefits of this Act. This is due to various factors that hinder the process of its implementation in mainstream schools. The main emphasis of this study is on the factors that hinder the implementation of the Children’s Act. The aim of the Children’s Act is to look after and provide services and support to children in need of care and protection. In order to provide such services and support to children, one needs to first identify such learners in need of care and their needs. Having done this, the support needed can be assessed and provided. This process is not easily achieved in mainstream schools. This study seeks to determine the factors that discourage the implementation process of the Children’s Act in mainstream schools. Data collection for this study included face to face interviews with teachers who are principals of schools and Life Orientation teachers, a social workers and school nurse. The data was used to analyze and interpret the challenges that hinder the implementation of the Children’s Act in mainstream schools. Among others, the study found that there is a lack of collaboration among stakeholders and coordination of service delivery. Poor parental involvement and commitment to parent involvement programmes was also evident. However, to a limited degree, there is interaction between the schools and relevant government departments. The study recommends that multidisciplinary teams should be formed whereby scarce resources can be shared. Various professionals should have the opportunity to come together toshare ideas and information. In order to encourage identification of learners in need of care, it is recommended that, the peer groups or peer educators be established and awareness campaign be conducted in schools. The study also recommends that developmental assessment programmes be conducted. Developmental assessment programmes will help gather information directly from learners or from an appropriate adult in the child’s life. They provide frameworks which can be used as guides for eliciting and analysing information.

The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.

Thesis (MBA (Business Management))--University of Stellenbosch, 2010.
ENGLISH ABSTRACT: The National Credit Act came into being on the 1st of June 2007 and besides its other objectives was intended to make credit more accessible to all South Africans, to stop unreasonable practices by lenders and to protect consumers against reckless lending. This research study investigates the credit environment for the period since the implementation of the Act up to the fourth quarter of 2009 to determine whether South African credit users are indeed better off or whether we are heading for a credit crisis. A literature review was conducted to investigate the extension of credit to households during the period under review and to investigate consumers’ ability and willingness to repay their debt. Due to the global and local financial crisis that happened during this period and the losses and wealth destruction that ensued, the research was extended to consider the influence of the macroeconomic situation on the debtors’ ability to honour their debt commitments. To determine whether South African households are heading for a credit crisis the researcher reviewed literature relating to the financial vulnerability of households, the application of their monthly disposable income, the main reasons for entering into credit agreements, and lastly the extent of over indebtedness. The findings indicate that credit has indeed become more accessible to all South Africans as the number of credit active consumers continued to increase from quarter to quarter. With regards to the cost of credit and the minimum qualifying criteria, credit also became more accessible as individuals earning as little as R1 500 per month became eligible for credit and store cards that used to be exclusive to higher income earners. During the period under review the standing of credit active consumers continued to deteriorate with only 54% of credit active users classified as current at the end of the period, almost 10% lower than before the implementation of the act. It was also found that macroeconomic influences from around the world had a real influence on the ability of credit active consumers to honour their financial commitments. Increased interest rates, inflation, higher transport and energy costs, unemployment and many other factors influenced the income available for and the ability to repay debt over the period under review. Lastly it was found that households are increasingly vulnerable to any changes in their income, expenses, savings or debt position. It is increasing to such an extent that more than 50% of all credit active consumers surveyed during a previous study admitted to borrowing in order to re-pay debt and that a relatively large percentage of users are committed to debt repayments for more than 100% of their monthly income. These findings support the opinion that a credit crisis is on the loom in the South African credit industry. Due to the relatively short period covered by the research stretches and the multitude of income groups and credit agreements included, more research is needed to make specific recommendations to improve the position of credit active consumers. The challenges facing the industry are further complicated by the need credit and other needs of the lower income earners, the required price-for-risk-policies of credit providers and the low levels of financial education amongst users. All three these themes require more research.
AFRIKAANSE OPSOMMING: Die Nasionale Kredietwet wat op 1 Junie 2007 in werking getree het het onder meer ten doel gehad om krediet meer toeganklik te maak vir alle Suid Afrikaners, om onbillike praktyke deur krediegewers stop te sit en om gebruikers te beskerm teen roekelose kredietverlening. Hierdie navorsing verken die kredietomgewing vir die tydperk sedert inwerkingtreding van die wet tot en met vierde kwartaal van 2009 ten einde vas te stel of Suid Afrikaanse gebruikers inderdaad beter daaraan toe is, en of ons afstuur op n krediet krisis. ‘n Literatuurstudie is onderneem om die toestaan van die verskillende tipes huishoudelike krediet tydens hierdie termyn te ondersoek, sowel as die gebruikers daarvan se gewilligheid en vermoë om hul maandelikse skuldverpligtinge na te kom. Vanwee die ernstige finansiële krisis wat tydens hierdie periode in die wêreld en in Suid Afrika grootskaalse verliese en welvaartsvernietiging tot gevolg gehad het, is die literatuurstudie uitgebrei om ook oorweging te gee aan die invloed van hierdie gebeure op skuldenaars se vermoë om hul skuldverpligtinge te diens. Ten einde vas te stel of Suid Afrikaanse huishoudings afstuur op ‘n kredietkrisis het die navorser literatuur bestudeer rakende die finansiële kwesbaarheid al dan nie van huishoudings, die aanwending van hul beskikbare inkomste, die redes vir huishoudings om geld te leen en laastens die omvang van gebruikers wat meer veskuldig is as wat hulle kan bekostig. Die bevindinge dui daarop dat krediet weliswaar meer toeganklik is vir alle Suid Afrikaners aangesien die aantal krediet gebruikers gedurende die tydperk van kwartaal tot kwartaal gegroei het. Wat betref die koste daarvan en die minimum vereistes daarvoor het krediet ook meer toeganklik geword, en kwalifiseer individue wat so min as R1 500 per maand verdien nou vir kreditkaarte en winkel krediet wat voorheen net beskore was vir die hoër inkomste groepe. Tydens hierdie periode het die status van kredietgebruikers verder verswak en het die persentasie kredietgebruikers wat op datum is met hul verpligtinge so laag as 54% gedaal; bykans 10% minder as voor die inwerkingtreding van die wet. Daar is verder bevind dat makro ekonomiese toestande in die res van die wêreld en Suid Afrika ‘n daadwerklike invloed het op die vermoë van kredietgebruikers om hul skuldverpligtinge na te kom. Stygende rentekoerse, inflasie, duurder vervoer en energiekoste, werkloosheid en vele ander faktore het die kontant beskikbaar vir en die vermoë om skuld te delg baie nadelig geraak oor heirdie tydperk. Laastens is bevind dat huishoudings toenemend kwesbaar is vir enige veranderinge in hul inkomste, uitgawe, spaar of skuld verpligtinge. Soveel-so dat meer as 50% van alle gebruikers van krediet erken dat hulle by tye geld geleen het om ander skuld te betaal, en dat ‘n beduidelnde persentasie gebruikers tot meer as 100% van hul besteebare inkomste verbind is vir maandelikse terugbetalings. Bogenoemde bevindinge ondersteun die opinie dat daar n dreigende krisis in die Suid Afrikaanse kredietomgewing is. Aangesien hierdie navorsing beperk is tot ‘n relatiewe kort termyn en dit ‘n groot spektum van inkomstegroepe en kredietooreenkomste dek, is verdere navorsing nodig om spesifieke aanbevelings te maak ten einde Suid Afrikaanse kredietgebruikers in ‘n beter posisie te plaas. Die uitdagings in die industrie word verder gekompliseer deur die krediet en ander behoeftes van laer inkomstegroepe, die noodsaaklikheid vir uitleners om hul produkte te prys vir die inherente risikos wat daaraan gebonde is en die lae vlak van finansiële opleiding onder gebruikers. Al drie hierdie temas benodig verdere navorsing.

Thesis (MBA (Business Management))--Stellenbosch University, 2008.
ENGLISH ABSTRACT: The banking industry is one of the most regulated industries in the world. The majority of these regulations are drafted to provide protection to consumers and investors and to ensure the systemic stability of the economy. South African banks, like many of their international counterparts, face a plethora of financial regulation aimed at ensuring stability and protection. In addition to these regulations, South Africa's prior exclusionary policies have resulted in the post-democratic government prescribing additional regulation, in part to address the economic duality that exists within the South African economy and in part to offer adequate protection to the most vulnerable in the society. The National Credit Act (NCA) is one such piece of legislation that has introduced a new era of consumer credit regulation and practice, bringing about wholesale changes to the consumer credit industry. The NCA and more than 260 other financial regulations in South Africa have a significant impact on banks, with each piece of legislation resulting in banks having to adapt to the changing environment (Nyamakanga, 2007). Using the four big banks' implementation of the NCA as a case study, the present study aims to establish if an integrative change management strategy could assist banks in effectively implementing financial regulation. The following aspects of the banks' implementation of the NCA were researched: • Effectiveness of financial regulation. • Current barriers and challenges to the implementation process. • Effect of these challenges on banks. • Impact on staff and customers. • Methods used to overcome the challenges. • Future challenges of the NCA. • Support structures used during implementation. • Use of change management principles. • Recommended strategies for future regulatory changes. • Recommended changes to the NCA. Detailed interviews were conducted with the overall NCA project leaders of each of the four big banks, namely, Absa, FNB, Nedbank and Standard Bank. The method of content analyses was used to analyse the qualitative data collected through in-depth interviews and the outcomes thereof formed the basis of the conclusions drawn. The study found that there were numerous challenges that the banks faced during the implementation of the NCA, the most common and significant as recognised by the population include, the magnitude of the Act, difficulty in interpreting the Act, the process of debt counselling and the associated costs of implementation. The study further found that using the principles of change management enhanced the banks' ability to implement the NCA. Conclusions drawn on the present study are confined to desktop research and semi-structured interviews conducted with the participating banks. It might be useful for future studies on the subject to include a broader population base which focuses on additional pieces of financial legislation in order to further enhance the findings of the present study.
AFRIKAANSE OPSOMMING: Bankwese is tans een van die mees gereguleerde industriee ter wereld. Die meerderheid van hierdie regulasies is ontwerp vir die beskerming van verbruikers en beleggers asook om die sistemiese stabiliteit van die ekonomie te handhaaf. Suid-Afrikaanse banke, soos talle van hul oorsese teenstukke, verduur talle finansiele wetgewing gemik op beskerming en stabiliteit. Die gewese uitsluitende Suid-Afrikaanse wette het veroorsaak dat die huidige demokratiese regering addisionele wetgewing voorskryf, gedeeltelik om die tweesydige Suid-Afrikaanse ekonomie aan te spreek en gedeeltelik om genoegsame beskerming aan die kwesbaarste van die gemeenskap te bied. Die Nasionale Krediet Wet (NKW) bied 'n nuwe era van verbruikerswetgewing en -praktyk aan wat terselfdertyd grootskaalse veranderinge op die verbruikers krediet bedryf teweegbring. Die NKW tesame met meer as 260 ander Suid-Afrikaanse finansiele wetgewing het 'n groot uitwerking op banke, met elke wet wat veroorsaak dat banke moet aanpas by die veranderlike omgewing (Nyamakanga, 2007). Deur om die vier groot banke se uitvoer van die NKW as 'n gevallestudie te gebruik, is die doel van hierdie studie om vas te stel of 'n geintegreerde veranderingsbestuurstrategie banke kan help met die doeltreffende uitvoering van finansiele wetgewing. Die volgende aspekte van die banke se uitvoering van die NKW is ondersoek: • Doeltreffendheid van finansiele regulasie. • Huidige versperrings en uitdagings tot die uitvoeringsproses. • Uitwerk van uitdagings op banke. • Uitwerking op personeel en verbruikers. • Metodiek gebruik om uitdagings te bowe te kom. • Toekomstige uitdagings van die NKW. • Ondersteunende strukture gebruik tydens uitvoering. • Gebruik van veranderingsbestuurbeginsels. • Aanbeveling van strategiee vir toekomende wetgewende veranderings. • Aanbeveling van veranderings tot die NKW. 'n Volledige onderhoud is gevoer met die projekleiers van elk van die vier groot banke, naamlik, Absa, FNB, Nedbank en Standard Bank. Inhoudsanalise was gebruik om die kwalitatiewe data te analiseer en die uitkoms daarvan vorm die basis van die gevolgtrekkings. Die studie dui aan dat banke baie uitdagings getrotseer het gedurende die uitvoer van NKW, die gewigtigste en algemeenste SODS herken deur die bevolking sluit in, die grootte van die Wet, moeilikheid in vertolking van die Wet, die skuldberadingsproses en die begeleidende koste van wetstoepassing. Die studie dui verder dat die beginsels van veranderingsbestuur banke se vermoe om die NKW uit te voer verbeter. Gevolgtrekkings aangaande die huidige studie is beperk tot "desktop" navorsing en half-gestruktureerde onderhoude met die deelnemende banke. Dit mag van waarde wees vir toekomstige studies om 'n bree bevolkingsbasis in te sluit met addisionele finansiele wetgewing wat die bevindings van die huidige studie kan bevorder.

Thesis (MDF)--Stellenbosch University, 2008.
ENGLISH ABSTRACT: High interest rates on credit products in South Africa are not unusual. This would be beneficial to the South African consumers if the cost of incurring these credit products was lower than the benefit derived from incurring them .This is unfortunately not the case to the majority of the South African population. The unlikelihood of this situation is a direct result of the lack of access to appropriate savings and insurance products to a large number of South Africans. Most South Africans use credit, in the form of microloans to augment their consumption patterns. The majority of South Africans do not have a culture of saving; therefore they use credit as a substitute for the lack of savings when consumption patterns exceed income. Using credit as a substitute for the lack of savings becomes extremely costly for low income earners. The result is a perpetual dependence on credit, lack of accumulation of wealth and a lack of improvement in their standard of living. The perpetual dependence on credit has brought about unscrupulous lenders who take advantage of the low income earners dependency on credit for their daily existence. It is due to such exploitations that the South African government through its Department of Trade and Industry (DTI) intervened to bring normality in the South African credit market. This intervention was done through the promulgation of the National Credit Act (NCA), Act No.34 of 2005. The purpose of this study is to focus on a sub set of the credit providers in South Africa known as housing microfinance (HMF) lenders. The study explores the impact of the National Credit Act in the South African credit industry. The Act’s intentions are elaborated and the reality of the implementation of the Act on the drivers of profitability for the housing microfinance institutions is measured. The finding is that housing microfinance institutions have to restructure their business processes in order to be profitable and sustainable in the ambit of the National Credit Act.
AFRIKAANSE OPSOMMING: Vir menige finansiële produkte in Suid-Afrika is rentekoerse wat wissel tussen 80 en 150 persent is nie ongewoon nie. In ekonomiese terme kan verbruikers slegs voordeel trek uit hierdie hoë rentekoerse as die koste om hierdie krediet te verkry laer is as die voordeel wat voortspruit uit die aangaan van die koste. Hierdie situasie is hoogs onwaarskynlik in die oorgrote meerderheid van gevalle in Suid-Afrika. Die onwaarskynlikheid van hierdie situasie is die direkte gevolg van die gebrek aan toegang tot toepaslike spaar- en versekeringsprodukte vir ‘n groot aantal Suid-Afrikaners. Die meeste Suid-Afrikaners gebruik krediet (naamlik mikrolenings) om hulle verbruikerspatrone aan te vul. Die gebruik van krediet as ‘n plaasvervanger vir spaargeld word uitermate duur vir die lae-inkomste verdiener. Die gevolg is ‘n ewigdurende afhanklikheid van krediet, geen akkumulasie van welvaart nie en ‘n gebrek aan verbetering van lewenstandaard. Die ewigdurende afhanklikheid van krediet het gewetenlose uitleners geskep wat die lae-inkomste verdieners uitbuit wat afhanklik is van krediet vir hul daaglikse bestaan. Dit is as gevolg van hierdie tipe uitbuiting dat die Suid-Afrikaanse regering deur sy Departement van Handel en Nywerheid tussenbeide getree het om normaliteit te bring in die Suid-Afrikaanse kredietmark. Hierdie intervensie is gedoen deur die uitvaardiging van die Nasionale Kredietwet, Wet No. 34 van 2005. Die doel van hierdie studie is om te fokus op ‘n onderdeel van die kredietverskaffers in Suid-Afrika bekend as die behuising-mikrofinansiering-uitleners. Die studie ondersoek die impak van die Nasionale Kredietwet in die Suid-Afrikaanse kredietindustrie. Die Wet se oogmerke word uiteengesit en die realiteit van die implementering van die Wet op die drywers van winsgewendheid vir die behuising-mikrofinansiering-instansies word gemeet. Die bevinding is dat behuising-mikrofinansiering-instansies hulle besigheidsprosesse moet herstruktureer ten einde meer winsgewend en volhoubaar te wees binne die strekking van die Nasionale Kredietwet.

The National Credit Act 34 of 2005 and its Regulations came into full effect on 1 June 2007. In order to protect consumers by addressing over-indebtedness, the Act introduces a novel process of debt review in which a new agent, the debt counsellor, plays an important role to help relieve a consumer’s over-indebtedness. However, after the Act commenced, problems soon came to pass with regard to the debt review process. This was mainly due to loopholes and shortcomings in the National Credit Act and its Regulations. The key problems in debt review practice which are identified and analysed in this dissertation, are as follows:

a) The interpretation of “the steps contemplated in section 129” in section 86(2). b) The application for debt review (Form 16 in the Schedule of the Regulations). c) The procedure to be followed when approaching the court. d) The format and contents of the “proposal” mentioned in sections 86 and 87. e) The omission of section 86(7)(c) in section 87. f) The non-provision for consent orders in terms of sections 86(7)(a) and 86(7)(c). e) The non-regulation of payment distribution agencies. f) The termination of debt review by the debt counsellor or a consumer. g) The qualifications, training and expertise of debt counsellors.

Consequently measures taken by the industry or suggested by scholars to solve these problems are evaluated, for example the work stream agreement, the publication of two sets of new draft regulations, the request for a declaratory order in the High Court, a research commission to the UP Law Clinic and numerous conferences. Somewhat oversimplified, it can be said that most of the measures taken to solve the problems moved in the wrong direction, that is away from a simple, easy, quick, cheap and consumer-friendly process. At the moment the debt review procedures are very complex, extended, expensive and even consumer-hostile. In conclusion additional measures are proposed to those that other sources already recommended. Effective implementation of these measures would hopefully improve the practice of debt review in the Republic of South Africa, although it can realistically be assumed that there will always remain challenges in this regard.
Dissertation (LLM)--University of Pretoria, 2011.
Private Law
unrestricted

Migration is a key means by which human beings act to preserve or enhance their well-being. Since Homo sapiens first emerged in Africa about 200,000 years ago, geographic mobility has been a prominent strategy for human adaptation and improvement (Cavalli-Sforza et al., 1994). In modern societies, people most commonly migrate to further their economic position or to join family members who migrated before them (Massey et al., 1993). Yet, many others move, both temporarily and permanently, with the more explicit purpose of reducing social, economic, political, or environmental vulnerability (Bardsley and Hugo, 2010; Hunter, 2005; Lundquist and Massey, 2005). All of these forms of human mobility frequently span international borders, oftentimes despite substantial barriers to transborder movement. Estimates of migration flows are the expression of these heterogeneous motivations. As the drivers of migration also vary conspicuously across nations (Clark et al., 2004; Massey and Sana, 2003) and evolve over time within countries (Lindstrom and Ramírez, 2010; Massey, 1990; Massey et al., 1994), they are particularly difficult to forecast. As we show in this chapter, even developing a homogeneous series of baseline estimates at a global level is very complex (Abel, 2013a), further complicating forecasting efforts. Reliable baseline estimates are hard to obtain, for instance, given differences in the definitions across countries of what is an international migrant (Kupiszewska and Nowok, 2008) and owing to the presence of sizable irregular or unauthorized flows in some nations (e.g. Passel et al., 2009). Notwithstanding these difficulties, international migration has increasingly become, and will remain, a crucial component of the population dynamics of many sending and receiving nations. While only 2 per cent of the world’s population lives outside of their country of birth, this figure is above 10 per cent for nationals of countries like Mexico and El Salvador. Foreign-born shares are also substantial relative to the population of many migrant-receiving countries, with levels above 10 per cent (in some cases well above) in North America, most of Western Europe and Oceania, and parts of South East Asia. At the extreme, this share has reached levels of 60–80 per cent in some age groups in the oil-producing nations of the Gulf Cooperation Council (GCC).

At the beginning of every year thousands of learners report for Grade R and Grade 1 across schools in South Africa. Unfortunately, many learners are refused admission to these grades when parents apply. The national policy that guides and governs admission of learners to public schools is the South African Schools Act (SASA) 84 of 1996. This policy stipulates that the admission age of a learner to a public or independent school for Grade R is age four, turning five by 30 June in the year of admission. For a learner to be admitted to Grade 1, the learner has to be five, turning six by 30 June in the year of admission (SASA 1996 Section 5a-6; Ramadiro and Vally 2005:1). But SASA (1996: Section 3(1) also states that attendance is compulsory in the year in which a learner turns seven. According to the National Education Policy Act (NEPA) 27 of 1996 and SASA (1996: Section 5) the Admission Policy of a public school is determined by the School Governing Body (SGB). However, according to the findings of the research there is no uniformity and consistency in schools as far as admission to Grades R and 1 is concerned. In addition, the study reveals that many parents are unaware of the age requirements for Grades R and 1. Although SASA does stipulate the admission age to Grade R and Grade 1, it also states that schools, in the form of the SGB, can determine their own Admission Policy. Hence some schools admit learners according to SASA, while others ignore the requirements stipulated in SASA and determine their own Admission Policies. The study aims to determine what the challenges are with the implementation of the policy. A qualitative research method in the form of interviews was conducted to collect data from teachers, parents, SGBs, school principals and departmental officials. Based on the findings recommendations were made, one of which is that there should be uniformity amongst schools as far as policy implementation is concerned. The theoretical framework that guides this study is document phenomenology.

While many HIV-infected individuals do not wish to have children, others want children despite their infected status. The desire and intent to have children among HIV-infected individuals may increase because of improved quality of life and survival following commencement of antiretroviral treatment. In developing countries such as South Africa, where the largest number of people living with HIV/AIDS worldwide reside, specific government reproductive health policy and service provision for HIV-infected individuals is underdeveloped. This policy brief presents findings from a qualitative study that explored HIV-infected individuals’ reproductive intentions, decision-making, and need for reproductive health services. The study also assessed the opinions of health-service providers, policymakers, and influential figures within nongovernmental organizations who are likely to play important roles in the shaping and delivery of reproductive health services. Conducted at two health centers in the Cape Town metropolitan area in South Africa from May 2004 to January 2005, the study focused on issues that impact reproductive choice and decision-making and identified critical policy, health service, and research-related matters to be addressed.