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Item Embargo A Criminological Inquiry into Bad Policing and Student Violent Protest: Insight from the University of Venda(2024-09-06) Nemurangoni, Gundo Chadley; Olofinbiyi, Sogo AngelUnderstanding student violent protests poses a significant challenge. Central to this concern is the perplexing question: "Why do students persist in resorting to violence during protests, risking arrest, injury, or even death?" Despite advancements in comprehending the evolutionary and proximate mechanisms underlying protests, there remains a notable scarcity of insight into the factors precipitating violence during such actions. One often-overlooked factor is ‘bad policing’ during protest events, which can serve as a catalyst for violence. The right to protest is a dynamic avenue for individuals to voice their concerns on pressing issues and ensure that decision-makers heed their grievances. Section 17 of the Constitution of South Africa (1996) enshrines the legal right of all individuals to engage in peaceful and unarmed protests, encompassing non-violent demonstrations that may not be regarded as highly disruptive. The research examined the relationship between poor policing practices and student violent protests at the University of Venda. Utilizing a mixed-method approach, data collection involved administering 200 questionnaires to UNIVEN students through a simple random sampling. Complementarily, SAPS POP officers from the Thohoyandou precinct were purposively selected for participation. Focus group discussions (FGDs) were conducted across four police stations, each comprising five members, including Thohoyandou, Mutale, Levubu, and Vuwani police stations, totaling 20 police officers for the qualitative aspect of the study. Quantitative data analysis was performed using Statistical Package for Social Science version 24 (SPSS), while qualitative data underwent thematic content analysis. The study fosters a balanced and just environment between police officers and protesters, thereby promoting a more stable, peaceful, and orderly university community. Key findings indicate significant relationships between police response attitudes and student violent protests, as well as between bad policing practices and such protests. Moreover, student attitudes toward police intervention during protests, the impact of student violent protests on the university's operational plans, and students' academic progress were also explored with more effective recommendations for improvement.Item Open Access The admission and enrolment of foreign legal practitioners in SACU countries as an international trade services issue(2022-11-10) Mambure, Yolanda Nyasha; Ndlovu, Lonias; Van Der Walt, TharienWhen WTO members make GATS commitments, it is imperative to do follow-up studies to establish how each member adheres to her international obligations and the laws they profess to uphold. To this end, the dissertation calibrated each SACU country's GATS commitments in the background of the laws underpinning those commitments as a way to see if they uphold international ratifications. Data were collected from information available in the public domain and published online. The study established that legal services are the most restricted in all SACU countries except Lesotho. For example, foreign legal practitioners are not admitted or enrolled in the Republic of South Africa and Namibia unless they become ordinary residents or citizens. In BOLESWA countries, namely Botswana, Lesotho and Eswatini, law graduates from sister universities are given preferential treatment. Graduates with qualifications from outside BOLESWA, irrespective of nationality, must sit for local Bar examinations and satisfy some local laws. For these reasons, the measures put in place are viewed as a wanton infringement of each respective country's constitution and the key tenets of GATS. Using Lesotho, one of the SACU members who has completely liberalised legal services, as a model, the study, through recommendations, demonstrates how these countries could best comply with the GATS to enhance regional integration, cooperation, and development.Item Embargo An evaluation of local government involvement in crime prevention: insight from Mopani District Municipality, Limpopo Province(2024-09-06) Madima, Khethiwe; Olofinbiyi, S. A.; Rakubu, K. A.Crime prevention has been recognised as one of the key national priorities in South Africa since the establishment of the National Crime Prevention Strategy (NCPS) in 1996. It is viewed to be the responsibility and duty of the South African Police Service (SAPS); however, with a range of crimes caused by different factors, it is impossible to rely exclusively on the police to prevent crime. Thus, various stakeholders such as businesses, communities, Non-Government Organisations, civil society, law enforcement and Municipalities need to take a stand in maintaining peace and ensuring safety for law-abiding citizens within their municipal boundaries. Using a mixed-method research approach, a purposive sampling was used to select 4 municipal safety officials, 5 SAPS social crime prevention members and 1 member from Department of Transport and Community Safety. A simple random technique was used to collect data from the selected 338 community members from all local Municipalities in the Mopani District. Quantitative data were collected through cross-sectional survey and analysed by descriptive and inferential analyses using the Statistical Package for Social Sciences (SPSS). Qualitative data were collected through semi-structured interviews and analysed using Thematic Content Analysis. The findings of this study revealed that the municipality is partially active in crime prevention. The study identified lack of resources, informal settlement, lack of coordination, by-laws compliance, accountability, political inference, lack of knowledge and expertise as the challenges that hinders the effectiveness of municipalities in crime prevention. The results further reveal lack of cooperation between SAPS and municipalities in crime prevention. This study recommends stakeholders’ engagement, public awareness, accountability, establishment of crime prevention body, CPTED, regular assessment and professionalisation of the crime prevention space as the intervention strategies that can advance the involvement of municipalities in crime prevention.Item Open Access An analysis of States’ obligations towards climate displaced persons under the African Human Rights System(2022-07-15) Simango, Victor; Jegede, A. O.Climate change poses the most menacing threat to the environment today. The effects of climate change are experienced globally, and Africa in particular is one of the most vulnerable regions. One of the main consequences of changes in climate is the displacement of populations, mostly internally. Those who are forced to leave their places of residence due to the effects of climate change are often not specifically protected by both the United Nations Framework Convention on Climate Change (UNFCCC) and the subsequent instruments such as the Kyoto Protocol to the United Nations Convention on Climate Change and the Paris Agreement. However, under the African Human Rights System (AHRS), the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) which entered force is novel in its provision in article 5(4) on the obligation of State Parties towards persons displaced by climate change. While it is clear under international human rights law that states have the obligation to respect, protect and fulfil rights, whether these obligations apply, and if so, what the nature of their application means for climate displaced persons under the African Human Rights System is not clear. The study interrogates the basis and how obligations to respect, protect, and fulfil rights apply to climate induced persons in Africa.Item Open Access An analysis of the impact of the right to equality on the South African customary law and legislation(2012-12-10) Rapudi, Jonathan; Choma, Hlako J.; Maluleke, Life R.Item Open Access The application of command responsibility in informal civilian relationships: for international crimes-lessons from the ICTR(2017-09-18) Mhuru, Tapiwa Agripa; Lansik, A.; Jegede, A. A.Since the birth of international criminal justice, the imposition of individual criminal responsibility has been expanded as evidenced by the instruments establishing the institutional mechanisms, at least, from Nuremberg to the Rome Statute of the International Criminal Court. The prescriptions of the imposition of criminal responsibility in international criminal law take cognizance of the fact that both top civilian and military personnel commit heinous crimes. However, until the establishment of the International Criminal Tribunal of Rwanda (ICTR), such prescriptions covering individuals who find themselves within informal civilian relationships had not earned much focus, be it at the identification of responsible individuals to their prosecution and conviction. Events in Rwanda during the 1994 genocide that led to the establishment of the ICTR revealed the involvement of this category of individuals. While their involvement took diverse forms, at different times, only some of them were identified and successfully prosecuted and convicted for the offences over which the ICTR has jurisdiction. This category of individuals (those falling under the rubric of informal civilian relationships) has not been addressed by scholarship on international crimes. This dissertation identifies such individuals, examines the allegations against them, the factual findings of the different Trial Chambers and develops a set of rules as well as lessons to be learnt from the trial and appellate proceedingsItem Open Access Children of asylum seekers and the realisation of social security rights in South Africa(2016) Lubisi, Tivoneleni Edmond; Jegede, A. O.; Letuka, P. P.The Constitution of the Republic of South Africa shows a clear and unambiguous undertaking by the state to develop a comprehensive social security system. In terms of Section 27 of the Constitution, it is provided that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The section also obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Parts of the social assistance are, inter alia, child related social grants in terms of the Social Assistance Act. This research considers the question of statutory exclusion of children of asylum seekers from accessing and exercising their social security rights, in particular, social assistance grants relevant to the needs, assistance and protection of children. Such grants are already provided for by the law to the South African citizen, permanent resident and refugee children. The question which this study seeks to address is whether South African government is in compliance with its constitutional and international obligations in respect of the social security rights and social assistance for children of asylum seekers in South Africa. This would be carried out by reviewing and exploring relevant International, regional and national human rights instruments relevant and applicable to the social security rights and assistance to the children of asylum seekers.Item Open Access Climate change regulatory framework and the protection of cultural rights in South Africa(2022-11-10) Maiwashe, Dzivhuluwani Rueben; Jegede, A. O.Climate change's severe consequences on cultural rights represent a clear threat to South Africa's development and progress. South Africa is affected by climate change, which is currently the world's greatest challenge. The link between culture and the negative effects of climate change has been proven in the literature, but the link between these and cultural rights, as well as the appropriateness of the climate change regulatory framework to handle this, has not been studied. The study looked at the negative effects of climate change on culture and evaluated whether South Africa's current climate change regulatory framework can help or impede the safeguarding of culture in the face of climate change's negative effects. The study also considered whether the climate change regulatory system in South Africa was enough for dealing with the negative effects of climate change on culture. To do so, the study used a desktop research method to assess and analyse current literature, legal framework, policies, and institutional activity on human rights, as well as the negative effects of climate change on the right to culture. It reviewed relevant legislation, national guidance documents and international and national studies about culture and aspects of climate change. Findings from this study show that South Africa has an elaborate legislative framework for addressing the detrimental effects of climate change but policy inconsistency, lack disjointment in application of policy at local level still affect the effective implementation of the legislative frameworks. The study unravelled the spatial application of law as one of the challenge hindering the protection of cultural rights. Moreover, court cases have demonstrated that the judiciary is an important avenue for solving matters that have to do with cultural rights as stated in the International Conventions on Climate Change. South Africa has a responsibility to integrate multiple knowledge systems, practices, and innovations in the design and implementation of international and national initiatives, programs, and policies in a way that respects and supports local communities and indigenous peoples' culture.Item Open Access A comparative study and analysis of substance abuse among grade 11 and 12 learners in selected secondary schools in Thohoyandou Area(2010-04) Magadze, Tshimangadzo Oscar; Roelofse, C. J.; Nengome, N. R.See the attached abstract belowItem Open Access Constitutional enforcement of Socio-economic rights: South African case study(2009) Choma, Hlako JacobThe entrenchment of socio-economic rights in the South African Constitution is a critique. It is submitted that a constitution that pretends to guarantee rights which cannot be judicially enforced should not be considered a serious legal document. In this paper, particular attention is paid to the far reaching judgment by the Constitutional Court in Mazibuko and others v The City of Johannesburg.1 The questions posed and answered relate to issues such as the enforceability of socio-economic rights entrenched in the constitutionsItem Open Access Constitutional protection of animal “rights” in South Africa and India: A legal comparison(2024-09-06) Mmbadi, Mbavhalelo Gerson; Jegede, A. O.; Lansink, A.The human-animal relationship has several inconsistencies. This is because of the contradictions on how human beings treat animals. In certain instances, human beings have shown love and affection towards animals, while in some instances, there has been a highest level of cruelty towards animals. Animal cruelty has long been a concern; however, society has occasionally accepted this behaviour as usual. This is because humans have power over animals and view them as property. A number of anti-cruelty Acts have been passed in South Africa in response to the current trend in the plight of animals. However, South Africa's anti-cruelty laws are insufficient, incoherent, and disjointed. Their anthropocentric as opposed to the ecocentric nature raises ethical and legal concern relating to the adequacy of legal protection of animals. Yet, ecocentric focus has emerged as a feature of legal protection in several legal systems; including India, which has used progressive interpretation of its Constitution for legal protection of animals. Using a doctrinal methodology, this study interrogates the various ethical and legal approaches that support the protection of animal rights. It then determines whether the legal protections for animals under South African law are adequate, and whether there are any lessons to be learned from India's constitutional protection of animals. It was found that Courts in South Africa prefer anthropocentric arguments to protect animals, while Courts in India prefer ecocentric viewpoints. Various provisions in the South African Constitution have been used to protect animals. There are, however, some constitutional provisions that can be used to protect animals, taking into account lessons in India, where Courts have readily extended constitutional provisions that protect humans to cover animals as well.Item Open Access The Constitutionality of Ukuhlola: A South African Cultural Practice(1995) Choma, Hlako JacobThe South African Human Rights Commission (SAHRC) as one of the chapter 9 state institutions supporting Constitutional democracy is mandated amongst others to promote respect for human rights and cultural practice. It also promotes the protection, development and attainment of human rights. It is within this mandate that the Human Rights Commission has observed the debates surrounding the prohibition of Ukuhlola (virginity testing) in the Children’s Bill. Ukuhlola has been historically regarded as a necessary social tool to bring pride amongst virgin girls, the parents and community as a whole. Ukuhlola is still practiced in some of the communities in South Africa, in particular Nguni communities. Ukuhlola culture originated from Zulu culture and is prevalent mostly in KwaZulu-Natal Province. The motive was to receive the full lobola (the eleventh cow). Ukuhlola practice faced out during the past century, but has made a come back in various areas of South Africa including Kwazulu-Natal in recent years. South Africa’s Moral Regeneration Movement3 has decided to urge the return of ukuhlola of teenage girls as a tool to fight against women abuse, teenage pregnancies and HIV& AIDSItem Open Access Corporate opportunity doctrine: A South African company law perspective(2021-06-23) Lavhengwa, Livhuwani SosanahThe corporate opportunity doctrine is a legal principle that demands that directors, officers and controlling shareholders of a company must not take for themselves any business opportunity that could benefit the company. However, this restriction does not apply to every member of a corporation. It is rather limited to those who could be said to stand in a fiduciary relationship with the company. The common law duties of directors are fiduciary duties of good faith, loyalty, and honesty. Every director owes to the company a duty to act in good faith and to serve in the best interests of the company. There are various responsibilities which stem from the duty of loyalty and honesty, that a director must show towards their company. These responsibilities include the duty to avoid conflict of interest, the duty of care, skill, and diligence, as well as the duty to disclose personal financial interests. These principles, which evolved at common law, are now statutorily recognised in South Africa. The Companies Act 71 of 2008 codifies the fiduciary duties of directors and makes them mandatory, prescriptive, and unalterable and applies to all companies. According to this Act, directors are not allowed to contract out of these duties. The aim of these duties is to raise the standard of corporate governance and directorial behaviour. It is the board of directors that has the full authority to exercise all the powers and perform the functions of the company to the extent that the Companies Act or company’s Memorandum of Incorporation does not provide otherwise. The broad nature of these powers demands close statutory and judicial monitoring. This is to avoid abuses that could occur in dealing with corporate opportunities. In addition, the law dictates that opportunities available to the company must not be diverted by a director to personal use. This dissertation, through a doctrinal approach, explores this legal prescription in the South African law. It is aimed at ensuring probity in corporategovernance.Item Open Access A critical analysis of the concurrent enforceability of restraint of trade agreements and garden leave in South African Labour Law(2019-05-18) Mahangwahaya, Musiiwa; Ndlovu, L.; Selala, K. J.The study critically analyses the concurrent enforceability of restraint of trade and garden leave in South African Labour law. The study seeks to answer the question of whether or not the simultaneous enforceability of restraint of trade agreements and garden leave is reasonable. Designed within a qualitative paradigm primarily based on a critical literature review, the study employs a doctrinal approach to establish the contemporary legal position in respect of the simultaneous enforceability of restraint of trade agreements and garden leave in South African Labour law. The objectives pursued by the study are to mitigate the controversies and clear the confusion relating to the enforceability of restraint of trade agreements; to justify the doctrine of restraint of trade; assess the reasonableness of the simultaneous enforceability of garden leave and restraint of trade; examine the onus of proof in matters dealing with the enforceability of restraint of trade agreements; test the constitutionality of restraint of trade agreements; evaluate the relationship between restraint of trade agreements and garden leave; and propose practical recommendations that can be employed to address identified legal flaws in the context of the topic. Structurally, the study begins with unpacking the background to the research topic, the history, origin and rationality of restraint of trade agreements together with an assessment of their enforceability. It further examines the effect of garden leave on restraint of trade agreements, outlines comparative perspectives on restraint of trade, including aspects relating to garden leave and highlights lessons South Africa may learn from the selected jurisdictions. Finally, the study recommends that South African jurisprudence should be developed to shift the burden of proof to employers to prove reasonableness of garden leave and restraint of trade agreements, to impose an obligation on employers to pay former employees for rendering them jobless and to set a maximum period that an employee can be prevented to compete or be employed by employer’s competitors.Item Open Access A critical appraisal of the creditor protective mechanisms under the South African Companies Act 71 of 2008(2019-05-18) Sibanda, Mandlaenkosi; Nwafor, A. O.; Letuka, P.This research examined the mechanisms that were employed by the Companies Act 71 of 2008 in order to protect the interests of creditors in company affairs. At the preamble of the aforementioned Act lies an undertaking from legislature to provide appropriate redress to investors and third parties/creditors. It was on that basis that the researcher sought to establish whether legislature had indeed fulfilled its commitment to provide appropriate redress to creditors. Traditionally, companies have been run to promote the interests of shareholders with little attention given to the interests of other stakeholders such as creditors. It is this research`s findings that South African company law has moved from the traditional view, that is the shareholder value approach, to the enlightened shareholder value approach: a model of corporate governance which permits directors to have regard, where appropriate, to the interests of other stakeholders but with shareholders’ interests retaining primacy. It is thus found that creditors cannot be protected by contract laws alone but that their protection should be enhanced by mandatory corporate laws which regulates the manner and conduct of company controllers in a way that ensures that the interests of all stakeholders, including creditors, are given due regard. Finally, it has been found that much work has been done by legislature in developing the re-enacted creditor protective mechanisms and also in statutorily adopting new mechanisms which are aimed at advancing creditor interests. Recommendations have thus been made to legislature for possible amendments to refine its corporate laws.Item Open Access A critical inquiry into the the role of law as an instrument for the promotion of social cohesion in post-apartheid South Africa(2022-07-15) Maweto, Patrick P.; Iyi, J. M.; Raphulu, T. N.Law as a system of rules promulgated for social function is one of the most crucial elements in promoting social order. Law generally sets frameworks for regulation of various and almost all levels of interaction between members of a society, and inter-alia, legal creations such as juristic persons. The functions of law are elementary in answering what law can do to promote social cohesion. This study evaluates the role of law in promoting social cohesion in the post-apartheid context under the constitutional dispensation in South Africa. The study makes an inquiry into the functions of law as well as its objectives in relation to promoting and advancing social cohesion in a society split by racial divisions, nationality differences, tribal diversity, and numerous rights of various kinds as well as political differences. The study utilises an empirical methodology as the primary methodology of gathering information by way of direct participation of community members. This methodology was instrumental in exploring empirical questions and gaps of law and underlying legal concepts. The responses of participants inform the major findings of this study that there is a relationship between the legal order and the social order based on mannerism of adoption, implementation and social calibration of laws. These laws however must be directed at reflecting the common values of people so as to facilitate the attainment of social cohesion. The findings of the study generate insights on the instrumentality, limitations and role of law in promoting social cohesion in the post-apartheid context of South Africa.Item Open Access Cultural Symbols and Schools Act: A South African Case Study(2013) Choma, Hlako JacobSection 9 of the Republic of South Africa Constitution1 recognises that discrimination against people who are members of disfavoured groups may lead to patterns of group disadvantage and harm. It turns to be unfair, since it builds and entrenches inequality amongst different groups in the society. It is common cause that the school governing body is obliged in terms of the South African Schools Act,2 to adopt a code of conduct for learners. The Minister of Education may in terms of section 8 (3) of the Schools Act determine guidelines for the consideration of governing bodies in adopting a code of conduct for learners.Item Open Access The effect of land expropriation without compensation on mortgagees(2022-07-15) Munyai, Tebogo Innocentia; Dhliwayo, P.; Mkhabele, C, J. M.M.; Nwafor, A. O.Expropriating land without compensation is an old notion that has been in the South African legal system. The colonial history of South Africa must be considered to better understanding of the origin of this phenomenon. Through colonial and apartheid governments, most whites were able to gain exclusive use of the majority of valuable and rich land. This position was made possible by the enactment of unjust and discriminatory legislation. To redress these injustices, the democratic government enacted section 25 of the “Constitution of the Republic of South Africa, 1996” (the Constitution). Therefore, the history of land ownership in South Africa serves as a foundation for a critique of section 25 of the Constitution. Section 25 not only serves as a basis for the protection of property rights, but also to create equality by restoring all other rights, including property rights, to previously disadvantaged people. However, section 25 has been criticised for impeding any meaningful land reform, thus a call was made for an amendmend to the property clause that allows for expropriation without compensation. In this regard, the aim of the study is to examine the potential effect of land expropriation without compensation on mortgagees. To achieve this objective, an analysis of the laws and legal mechanisms regulating mortgage bonds is analysed, the constitutional perspective on the expropriation of land without compensation is assessed, and the effect of expropriation of land without compensation on mortgagees in South Africa is appraised. The study employs the doctrinal methodology. The study contends that expropriation of land without compensation has a direct or indirect effect on mortgagees in South Africa. It poses a substantial risk to the banking sector as a decrease in the value of land-based property, caused by an amendment to section 25, could impact negatively on mortgagees.Item Open Access The effect of mining operations in Chiadzwa, Zimbabwe and Mogalakwena, Limpopo, South Africa, on the environmental human rights of local community(2015-07-16) Masekesa, Liberty Kudzai; Vukor-Quarshie, George; Hagenmeier, Cornelies; Letuka, PulengItem Open Access The environmental rights entrenched in the constitutions: a critique(2015) Choma, HlakoAlthough environmental law is a relatively a new field of scholarship in South Africa, it is growing rapidly. The right to access to social security including environmental rights is found in the South African Bill of Rights, is being amplified by legislative and constitutional reforms, and developing case law in the courts. There is therefore a clear need to increase the understanding f the discipline through systematic research and teaching at various levels1. The notion of including an “environmental right” in a domestic constitution is not novel in Africa. Most African countries have incorporated a constitutional provision that ensures the right to a healthy environment. Most of the problems that exists with environmental rights under the international and regional systems are absent under the domestic South African system. The way in which environmental rights have been formulated in international instruments, section 24 of the South African Constitution has been framed as an individual right and not as a collective one. Environmental degration often affects groups of people and it could consequently argued that the right should protect groups and not just individuals2. 1
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