Browsing Law Research Articles by Subject "South Africa"
Now showing items 1-9 of 9
-
du Toit, Francois (Elsevier, 2013)[more][less]
Abstract: This article examines the fundamental rule of South African trust law that co-trustees must always act jointly in regard to trust administration. It highlights the rule's foundation, but also contextualizes some of the practical problems associated with the rule's operation. In particular, the article focuses on South African courts' treatment of the joint-action rule, and shows that judicial engagement with the rule has not been satisfactory in all respects. The article casts some light on possible future developments in regard to co-trusteeship in South African law. URI: http://hdl.handle.net/10566/620 Files in this item: 2
duToitCo-trustees2013.pdf (113.6Kb)DuToitCo-trusteeship2013.pdf (216.6Kb) -
Wakefield, Lorenzo (Queens University, Belfast School of Law, 2011)[more][less]
Abstract: Article 40 of the United Nations Convention on the Rights of the Child1 requires states parties to take appropriate measures to ensure that children accused of committing offences are treated in a manner that would ensure that their best interests are upheld. South Africa2 ratified the CRC in 1995, the provisions of which have influenced the children’s rights clause in its 1996 Constitution. Section 28(1)(g) of the Constitution stipulates that children may not be detained, except as a measure of last resort and, should they be detained, it should be for the shortest appropriate period of time. Section 28(1)(g) goes further to give domestic effect to the following guarantees stipulated in Article 40 of the CRC: (1) the right to be treated in a manner, and kept in conditions, that take account of the child’s age; and (2) to have a legal practitioner assigned to the child. Recently, SA has enacted its Child Justice Act 75 of 2008, which came into operation on 1 April 2010. The question to be covered in this article is whether this Act truly complies with the international standards set by the CRC (15 years after SA ratified it); the general comments by the United Nations Committee on the Rights of the Child 3 and other non-binding, yet persuasive instruments like the Standard Minimum Rules on the Administration of Juvenile Justice and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. This article only examines four aspects of the Child Justice Act, being: criminal capacity; pretrial release and detention; diversion; and sentencing. It concludes that, but for a few technical aspects of the Child Justice Act, SA took significant steps to comply with its international obligations when it domesticated the CRC in relation to children who commit offences. URI: http://hdl.handle.net/10566/598 Files in this item: 1
WakefiledChildJusticeAct2011.pdf (228.2Kb) -
Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L. (Cambridge University Press, 2011)[more][less]
Abstract: The right to non-discrimination for all children is established in international human rights law. International children’s rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children’s rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children. URI: http://hdl.handle.net/10566/577 Files in this item: 1
-
Wakefield, Lorenzo; Murungi, Nkatha L. (Pretoria University Law Press, 2011)[more][less]
Abstract: International law approaches the right to education for children with disabilities in a rather generic way. This means that the rights of children with intellectual disabilities have to be gleaned from the general provisions of the conventions. In view of the centrality of intellectual capacity in the context of education, it is imperative to decipher the import of the right to education for children with intellectual disabilities. For this purpose, this chapter explores the content of international law on the right to education of children with intellectual disabilities. It uses two case studies to assess the approach of African states to the domestication of the obligations in this regard. Kenya and South Africa have both ratified the CRC, ACRWC and the CRPD. Further, Kenya has ratified and South Africa signed the International Covenant on Economic, Social and Cultural Rights (CESCR). URI: http://hdl.handle.net/10566/545 Files in this item: 1
WakefieldIntellectualDisability2011.pdf (134.2Kb) -
Du Toit, Darcy (Faculty of Law, University of the Western Cape, 2010)[more][less]
Abstract: Domestic workers form one of the most vulnerable and exploited sectors of the workforce in the world economy. In 2002 South Africa became one of relatively few countries to promulgate special legislation aimed at extending protection to domestic workers in the form of Sectoral Determination 7: Domestic Worker Sector, South Africa. In the context of current debate about setting international standards for the domestic employment sector by means of a Convention and/or Recommendation of the International Labour Organisation, the article examines what has been achieved in South Africa over the past decade in extending legal protection to domestic workers, problems that have been encountered and possible ways in which those problems may be addressed. URI: http://hdl.handle.net/10566/633 Files in this item: 1
DuToitDomesticEmployment2010.pdf (794.1Kb) -
Moosa, Najma (Juta Law, 1995)[more][less]
Abstract: Introduction: The first Muslims had arrived at the Cape from the Dutch colonies in the East Indies (now Indonesia) and the coastal regions of Southern India from anywhere around 1652-1658. Despite having been granted the freedom to practise their religion since 1804, Muslims could not give legal effect to their personal laws for three hundred years as social restrictions and political inequalities prevailed until recently. It is anticipated that the rapid changes taking place in South Africa since the democratic elections of 1994 will rectify this situation expeditiously. URI: http://hdl.handle.net/10566/636 Files in this item: 1
MoosaMuslimPersonalLaw1995.pdf (494.8Kb) -
Mujuzi, Jamil Ddamulira (Juta Law, 2008)[more][less]
Abstract: When the death penalty was declared unconstitutional in South Africa, the government enacted the Criminal Law Amendment Act in 1997 which, amongst other things, stipulated that a person convicted of some of the scheduled offences was to be sentenced to life imprisonment unless there were substantial and compelling circumstances. Many courts interpreted substantial and compelling circumstances in many different, and at times confusing, ways. The Supreme Court of Appeal clarified the meaning of substantial and compelling circumstance in the well-known Malgas case in which it held, inter alia, that courts should not lightly depart from imposing severe sentences, since the legislature had singled out the scheduled offences to be punished severely because they are serious offences. One of the criteria the Court set was that courts should not rely on ‘speculative hypotheses favourable to the offender’ to avoid imposing life sentences. However, recently, in the Nkomo case, the Court held that the prospect of rehabilitation of the offender is a substantial and compelling circumstance to justify the imposition of a lesser sentence. This article analyses rehabilitation as an objective of punishment and highlights the likely challenges associated with the approach the Court seems to be adopting. URI: http://hdl.handle.net/10566/420 Files in this item: 1
MujuziLifeImprisonment2008.pdf (214.8Kb) -
Powell, Derek (Oxford University Press, 2010)[more][less]
Abstract: The international community accepts that peace, justice and development are indivisible properties of human freedom and thus wants a more coordinated approach to post conflict recovery. Today, transitions to democracy are typically launched through constitutional negotiations and anchored in efforts to fix broken state institutions or create new ones. These are settled strategies for addressing the social and economic causes of conflict in troubled societies. Transitional justice (TJ) has been slow to appreciate or capitalize on the inherent potential of these political processes to further justice and peace. By not taking a wider view of the opportunities for change that are presented by the transitional moment, TJ limits its capacity to construct the institutions that must work if a return to conflict is to be prevented. With this in mind, prominent practitioners have begun to look at how to extend TJ’s brief to include a wider set of issues linked to social justice. They are also looking for concepts and tools to bridge the divide between the field and related disciplines. This article presents South Africa’s transition as a case study of this wider view and is written from the perspective of a practitioner who was involved in building the post-apartheid democratic state. It aims to contribute to the current debate about TJ’s stake in post conflict transitions. URI: http://hdl.handle.net/10566/610 Files in this item: 1
PowellTransitionalJustice2010.pdf (275.6Kb) -
du Toit, Francois (Oxford University Press, 2013)[more][less]
Abstract: In this article, I assess the constitutive status accorded to trust deeds in Potgieter v Potgieter and Pascoal v Wurdeman, two recent South African judgments on trust variation. In particular, I analyse judicial condemnation of invoking reasonableness or fairness as free-standing norms to refashion the terms of trust deeds outside established common law or statutory norms; and I illustrate the place and role that equitable considerations play in South Africa as components of existing aggregated legal rules on trust variation. I also test the judicial approach taken to the foundational nature of trust deeds in the aforementioned judgments against the status accorded to trust instruments and documents by the Trust Property Control Act—a statute that regulates aspects of trust law in South Africa. URI: http://hdl.handle.net/10566/624 Files in this item: 2
DutoitTrustdeeds2013.pdf (148.0Kb)DutoitTrustdeedsPublished2013.pdf (81.19Kb)
Now showing items 1-9 of 9