Dissertations / Theses on the topic 'Critical Analysis – Law'
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1
McNicol, Suzanne B. "The law of privilege : a critical analysis." Monash University, Faculty of Law, 2001. http://arrow.monash.edu.au/hdl/1959.1/9060.
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Khopuangklang, Korrasut. "A critical analysis of promise in Scots law and Thai law." Thesis, University of Edinburgh, 2016. http://hdl.handle.net/1842/22831.
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This thesis critically analyses the law of promise. It does so for the purposes of identifying potential solutions to practical and doctrinal problems in the Thai law of promise. Scots law is chosen as the main point of comparison because, inter alia, both jurisdictions are mixed jurisdictions. Scots promissory law was influenced by the Canon Law and was part of the ius commune tradition. Scots law was not influenced by English law in this area. Scots law has developed its own promissory obligation as a free standing legal entity outwith contract. Thai promissory legal principles were derived from both Civilian and English sources. Consequently, promissory language is used both in the sense of a unilateral obligation and a contractual promise. Moreover, the Thai drafters did not acknowledge the different attitude towards a unilateral promise of French law (where a promise must be accepted in order to be binding) and German law (where particular types of unilateral obligations are recognised). This thesis argues that the flaws in promissory provisions under the Thai Code stem from the fact that, inter alia, the drafters did not understand the difference between unilateral and bilateral obligations. This thesis argues that the Scots promissory approach presents a more efficient structure of the law of obligations than the Thai approach. It encounters fewer problems than Thai law because a promise is deemed to be a standalone obligation. This thesis further analyses the practical applications of promise, arguing that a promissory analysis is useful in conceptualising practical circumstances. Adopting a promissory approach is beneficial, making doctrinal analysis clearer in comparison with the offer and acceptance approach. This thesis takes into account the role given to promise in the DCFR. The notion of a unilateral undertaking in the DCFR illustrates that the most recent model rule of European private law recognises the importance of a unilateral obligation. This reflects the fact that the notion of a contract cannot appropriately deal with certain situations in which a person unilaterally intends his/her undertaking to be bound without acceptance. It is concluded that the Scots approach of regarding a promise as an independent obligation separate from contract could be adapted to Thai law. There are certain resemblances between Scots and Thai law in promissory theories and the obligational nature of a promise. Therefore, Thai law is not unfamiliar with the notion that a declaration of wills can unilaterally create an obligation. The proposed approach provides a number of advantages e.g. eradicating an overlap between a promise and an offer; clarifying the legal status of promise; and making the legal status of a promise to make a contract compatible with a promise of reward. In particular, this thesis postulates that promise has a substantive role to play in governing an offer specifying a period of acceptance. This particular observation has, to date, not been made in relation to Thai law.
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Harrison, John Conacher. "The Mareva injunction : a comparative and critical analysis." Thesis, McGill University, 1992. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=60642.
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This thesis charts the progress of the Mareva Injunction from its inception in 1975 in England, to the present day. It examines selected issues of importance relating to the injunction and provides a critical analysis thereof recommending reforms where appropriate.The thesis commences with an examination of the historical origins of the jurisdiction in England. Chapter II looks at the evolution of the Mareva Injunction and Chapters II to VIII analyse certain legal consequences flowing from the Mareva Injunction which the author considers are of particular interest.
Section B of the thesis is a critical analysis and historical survey of the Mareva Injunction in Canadian law. It attempts to compare and contrast English and Canadian jurisprudence on this topic. The thesis concludes that the majority of jurisprudence in both England and Canada has helped and not hindered the development of the Mareva Injunction.
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Bendezú, Medina Samuel H. "Critical analysis of Comparative Law. Interview with Tom Ginsburg." IUS ET VERITAS, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/122496.
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In this interview, the professor Tom Ginsburg addresses Comparative Law, the conditions for its study, its influence in capitalism, as well as his comparative studies over the constitutions, especially, of Latin American ones. He also addresses the conceptions that societies have about the relationship between Law and society, the moment of the creation of a Constitution, the factors involved in it and the perception of the judges and their decisions.En la presente entrevista, el profesor Tom Ginsburg comenta acerca del Derecho Comparado, de las condiciones para su estudio, de su influencia en el capitalismo, así como sus estudios comparados sobre las constituciones, en especial, de las latinoamericanas. También comenta las concepciones que las sociedades tienen acerca de la relación entre el Derecho y la sociedad, el momento de la creación de una Constitución, los factores involucrados en ella y, sobre la percepción de los jueces y sus decisiones.
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Lebone, Likonelo. "Telecommunications law and regulation in Lesotho - A critical analysis." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4652.
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In 2000, the Lesotho telecommunications sector underwent a fundamental change in structure, from that of monopoly to one of competition. A new regulatory regime was introduced and a regulatory agency, the Lesotho Telecommunications Authority was established to promote telecommunications development and to safeguard competition. The 2000 legal framework supports competition but fails to adequately minimise the regulatory risk. The new regime also failed to facilitate improved or satisfactory sector performance. The Lesotho regulatory framework addresses most internationally recognised telecommunications regulatory issues, but most areas needs improvement if sector performance and investor perception is to be enhanced. Firstly, the Government must give the regulatory Authority functional independence. Secondly, the Authority must revisit various policy areas. For instance universal access policy and programmes that bring affordable services to the rural and urban populations alike must be developed and implemented; complimentary policies that encourage the use of the services and investment in the sector, like investment, consumer protection and competition policies must be adopted; alternative dispute resolution mechanisms, especially for disputes between the regulator and service providers must be introduced and preferred in the sector. The challenge is to bring telecommunication services to all communities including low-income families and communities in rural and mountainous areas. Thus whatever policies are adopted, universal access and improved sector performance should be a guiding goal which must be pursued rigorously.
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Emurwon, Brian Kwame. "Sentimental damages in English contract law : a critical analysis." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12609.
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Includes bibliographical references.This dissertation's primary hypothesis is that the angst-spawning confusion plaguing this area of law stems from a feckless amalgamation of parallel, if not competing, notions of loss. Let me explain. When a promisee seeks judicial relief for breach, the court habitually applies two deeply-ingrained presumptions of fact whose status has been unconsciously elevated to rules of law.10 These judicial presumptions are that: 1. The promisee's concern is loss of performance and not loss of promise; and (After confining the matter to loss of performance) 2. The promisee's performance interest is essentially pecuniary value (profit) and not non-pecuniary value (utility). The Addis case illustrates the sad result of focusing on performance in a situation where the predominant loss caused by breach is promissory in character (Presumption 1). Farley, on the other hand, promotes the commercial agenda by perpetuating the notion that financial loss is the premier interest of contract as law (Presumption 2). This dissertation tests the above hypothesis by evaluating the prohibition on mental distress damages.
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Smit, Albertus Ebenhaezer. "Compulsory acquisition of minority shareholding : a critical analysis." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/19911.
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The compulsory acquisition refers to situations where the minority shareholders are compelled to dispose of their shares. In certain instances the minority shareholders can compel the majority to acquire their shares by an enforced acquisition. The compulsory aspect is thus the unilateral and coercive aspect of the transaction that can arise subject to the fulfilment of certain statutory and regulatory requirements. These transactions are commonly known as squeeze-outs or freeze-outs, whereas sell outs is where minority shareholders have the right to have their shares acquired by the company on a compulsory basis. In this dissertation the argument will be made that the objective of these forms of transactions is to relieve the majority or controlling shareholder from undue oppression by the minority shareholders not only in instances of control transferred squeeze outs but also in respect to control maintained transactions. The dissertation will focus on the three main forms of squeeze-out transactions being the tender offer squeeze-out, the squeeze-out by means of a fundamental transaction and the supermajority squeeze-out transaction. The emphasis will be on how the first two forms of transactions are implemented in the South African context and a case will be made to include the final form in t out legal framework. A specific emphasis will be given to the regulation of these transactions in ensuing the fairness to the affected minority shareholders.
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Kaphuka, Samuel. "The SADC protocol on trade: a critical analysis." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/19788.
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"Is the SADC Trade Protocol adequate to meet its stated objectives and to address the problems of limited intra-SADC trade?" This thesis will argue that although the protocol has had some impact on intra-regional trade, some provisions contained within it remain a barrier to trade. The thesis will focus on how the SADC protocol on trade can address solve the problems of intra-SADC trade. It will be argued that certain provisions within the Protocol undermine the objectives of the protocol as outlined in Article 2. These provisions include but are not limited to the rules of origin, non-harmonization of external tariffs, derogations to the elimination of barriers in intra-SADC trade provisions found in Article 3, and inadequately tackling non-tariff measures. In examining the protocol, reference will be made to the similar provisions contained in the East African Community (EAC).
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Obeidat, Yusuf Mohammed Gassim. "The 'penalty' clause in English law : a critical analysis and comparison with Jordanian law." Thesis, University of Leeds, 2004. http://etheses.whiterose.ac.uk/11265/.
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This thesis discusses the penalty rule in English law. Pre-arranged provisions concerning the estimation of due damages in event of the promisor' breach are of considerable practical importance. When such provisions are enforceable they are called liquidated damages clauses. However, English law courts will not enforce these provisions where they are categorised as penalty clauses. A penalty clause is a contractual provision which provides that in the event of a breach of contract the de,faulting party shall pay to his contractual partner a sum which is unconscionable and extravagant in relation to the loss that is likely to result from breach. Despite the fact that the non-enforcement of penalties seemed to be well recognised at least by the seventeenth century the penalty rule remains elusive and controversial. This thesis tentatively suggests a New Approach which in some circumstances would involve a different solution than the application of existing law. The thesis also builds upon a comparison with Jordanian law. This thesis has been divided into SIX chapters.' The first chapter examines the historical development of penalty clauses and also introduces the New Approach. The second chapter critically examines the existing test, i.e. the sum being extravagant and unconscionable, for the invalidity of penalty clause. Chapter three considers the principle that the penalty rule is only applicable on breach and the loss to be estimated for application of this rule. The general principle under English law, which gives a court no power but to declare the invalidity of a penalty is dealt with in chapter four. The circumstance where the injured party's actual loss exceeds the stipulated sum is the object of examination in chapter five. Chapter six discusses whether the penalty rule should be applied to a provision that requires a forfeiture of money already paid taking into consideration that the only difference between a forfeiture clause and a stipulated damages clause is that under a forfeiture clause the sum is paid before breach. In the last part of this thesis a summary of the thesis including suggestions for the improvement of the current law are put forward.
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Elias, Olusoji. "Judicial remedies in English private international law : a critical analysis." Thesis, University College London (University of London), 1995. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.338735.
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Ngwembe, Geofrey P. "Project finance law and regulation in Tanzania: a critical analysis." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/28070.
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Long term finance schemes are, to a little extent, employed in Tanzania since major economic reforms which occurred in the 20th C. Shifting from public finance mechanism, the government of Tanzania have initiated mechanism such as PPP in order to instil private sector in engaging in several economic activities. As projects basis form of investment have been adopted in catering with developmental plans, especially in becoming an industrialized nation - Tanzania - by 2025, an effective legal and regulatory framework for project finance is crucial. Despite having PPP, Tanzania still faces several challenges, especially on its recognition and implementation, mainly, inadequate legal framework as project finance not only caters for PPP transactions, but also for private and public finance of projects, lack of specific regulatory body/division, as well as extensive government interference in projects. The lack of an effective legal and regulatory framework for project finance mechanism deters its success unless it is redressed, hence the purpose of this dissertation which is to ascertain and review project finance setting in Tanzania, experiences and lessons will be drawn from the UK and South Africa in determining the legal and regulatory framework of project finance in Tanzania, tackling of challenges within, and way forward in the incorporation of project finance mechanism as a new mechanism in Tanzania's jurisdiction.
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Nhlebeya, Bornito Luvuno. "A Critical Analysis of Sexual Harassment in the Workplace." Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/75053.
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The dissertation seeks to scrutinise the definition of sexual harassment in the workplace. It seeks to analyse the legislation and the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases read together with the 2005 Code, in order to establish whether the definition of sexual harassment and its application in the workplace is clear and concise.
The dissertation seeks to answer some important questions:
Has the definition not been stretched too far in a way that leads to challenges in its application?
Have the tribunals and courts decided on what is sexual harassment in the workplace, with certainty?
Have the courts over the years interpreted the definition in such that employees and employers understand exactly what sexual harassment is?
This is important because, out of a definition an act is defined, employees charged, found guilty and dismissed on sexual harassment charges. The tribunals and courts also, rely on the same definition to determine disputes. Court decisions set precedents and cements the law. Certainty is key in any society as it enables members to self-monitor their behaviour.
The paper also investigates the USA and Canada jurisdictions for comparison. What can we learn from these jurisdictions, when coming to handling of sexual harassment cases, or is the South African position better?Mini Dissertation (LLM)--University of Pretoria, 2020.
Lewis Stores (Pty) Ltd
Mercantile Law
LLM
Unrestricted
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Kamaris, Georgios. "A critical analysis of the European Union's state and policy impementation." Thesis, Brunel University, 2014. http://bura.brunel.ac.uk/handle/2438/8089.
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State Aid policy has been an integral part of competition policy and the European Commission is responsible for controlling aid, which distorts competition in the internal market to be granted by Member States. State Aid is usually defined as advantages given by the State to undertakings in the form of financial contributions, support, or other forms of special treatment. This thesis will examine state aid policy and regulation in the European Union. The research aims at critically analysing the implementation of the rules that compose the European state aid framework and conclude on whether the system for the control of state aid is set in an effective way to achieve the objectives of protecting competition and therefore the internal market by limiting aid levels and streaming aid towards more beneficial aid. This research is important because it can reveal the particular benefits and problems caused by state aid and help by making recommendations for the future application of the rules.
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Keyes, Mary Elizabeth, and n/a. "A Critical Analysis of Jurisdiction in International Litigation." Griffith University. Griffith Law School, 2004. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20051214.143910.
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This thesis critically analyses the Australian law of jurisdiction in private international litigation. Jurisdiction in international litigation is often regarded as a procedural area of law which is less important than choice of law in practical and theoretical terms. There has been little scholarly attention devoted specifically to the study of jurisdiction in Australia. In recent years, jurisdiction has certainly overtaken choice of law in practical importance. This emphasises the need for critical academic study of the law of jurisdiction. This thesis addresses this need. It critically analyses the present principles and the manner in which they are applied, identifies the factors which should influence the law, and proposes appropriate reforms to the principles. This thesis is in five related parts. The first part examines the procedural and constitutional context in which the principles of jurisdiction have been developed and applied. This context has important implications for the law and practice of jurisdiction, which have largely been overlooked in the literature, although they are important in understanding how the principles have developed and how they are applied. The second part critically analyses the present law of jurisdiction. The Australian principles of jurisdiction have not changed substantially in the last 100 years, while economic and social conditions which affect international litigation have undergone dramatic and wide-reaching changes. The present law provides that the courts are jurisdictionally competent in a wide range of cases, which do not all require a substantial connection between the dispute and the forum. The various principles applied in declining jurisdiction make it likely that the Australian courts will exercise their discretion to retain jurisdiction in the majority of cases. Foreign jurisdictional agreements should be enforced by a stay unless there are strong reasons for non- enforcement. But the application of overriding mandatory rules, even where there is a jurisdictional agreement, and the courts' wide discretion under the Australian forum non conveniens principle make it unlikely that the courts will decline to exercise jurisdiction. The present principles, in short, permit the courts to take jurisdiction in too many cases, and require them to decline to exercise jurisdiction in too few cases. The third part examines how the principles on declining jurisdiction operate in practice. This is addressed by a doctrinal and an empirical analysis of the manner in which these principles are applied by the Australian superior courts. These analyses identify factors which appear to influence decisions in practice, not all of which are consistent with the applicable principles. For example, the principle requires the court to enforce foreign jurisdictional agreements unless there are strong grounds for non-enforcement. In practice, strong grounds are easily shown. These analyses show that there are factors which influence decisions which are not always apparent from the principles, suggesting that reform is required. The fourth part identifies the factors which ought to influence the law and practice of jurisdiction. The relevant factors are identified in terms of the interests of foreign states, individual litigants' interests and the forum state's interests. The law and practice of jurisdiction are examined to determine whether those interests do in fact influence law and practice. Many important interests, especially of foreign states and of defendants, are not sufficiently taken into account. This also implies that reform of the principles is warranted. The fifth part considers how Australian jurisdictional principles could be improved. Detailed reforms are suggested, drawing on a discussion and an evaluation of different approaches to jurisdiction, particularly drawing on the European Community's Regulation on Jurisdiction and Judgments. The principles should ensure that the court is jurisdictionally competent only where it is likely to be an appropriate forum for the dispute. The proposed reforms identlfy grounds of exclusive jurisdiction, provide protection to weaker parties to contracts, and otherwise require the enforcement of jurisdictional agreements. Default rules of jurisdiction which are likely to indicate a strong connection between the forum and the dispute are proposed. Specific principles for declining jurisdiction are also proposed. Retention of the forum non conveniens principle is recommended, but the English principle is advocated as a more suitable and just approach. This thesis is intended to contribute both to a theoretical understanding of this area of law and to an understanding of its practical application.
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Machitela, Malesela Abram. "Critical analysis of how the South African criminal law addresses cybercbullying." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/73398.
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The work deals with shortcomings in the South African Criminal Law in respect of how to addresses cyberbullying crime. The report focus on how American Legislation deals with cyberbullying as compared to South African Legal framework. The work critically analyses the the South African legislation dealing with cyberbulying as a criminal offence.Dissertation (LLM)--Universtity of Pretoria, 2019.
None
Procedural Law
LLM
Unrestricted
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Bakta, Seraphina Msengi. "A critical analysis of the child justice system in (mainland) Tanzania." Doctoral thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20497.
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This study critically examines the child justice system in mainland Tanzania in the light of principles recommended by international child rights law. Thus far, international child rights law has developed a three-dimensional approach to child justice: an effective system to prevent child delinquency, the use of non-judicial procedures, and the development of special procedures aimed at protecting the rights of the child when judicial interventions are unavoidable. This approach is consistent with modern philosophical thinking about child justice. The analysis of Tanzania's policies and laws on the prevention of child delinquency revealed glaring inadequacies. In particular, the laws fail to provide adequate legal protection to their socio-economic rights, such as those relating to health services and education. Since children subjected to violence and those lacking access to the basic necessities of life are the most prone to delinquency, the lack of policy attention to these areas mean that most of those children are likely to continue to engage in delinquency. Tanzania's child justice system places undue reliance on judicial mechanisms. Although an attempt has been made of late to introduce some provisions allowing for the use of non-judicial interventions, these lack sufficient legal foundation and are not used consistently. Despite its reliance on judicial mechanisms, Tanzania's child justice system is not as child friendly as one would expect. Granted, judicial mechanisms make provision for the child's rights to information, to be heard, to privacy and to an expeditious process. However, they do not adequately protect the child's rights to legal representation and to protection against prosecution for status offences. Sentences such as repatriation, detention at the President's pleasure and corporal punishment, which are inconsistent with international law, are still legally allowed. Substantial reforms are required in order to make Tanzania's child justice system compliant with international law and modern notions of justice. The reforms that have been made through the recently enacted Law of the Child Act 2009 are commendable but, as this thesis shows, much more remains to be done in order to guarantee in full the rights of the child in Tanzania's child justice system.
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Lerm, Henry. "A critical analysis of exclusionary clauses in medical contracts." Pretoria : [s.n.], 2008. http://upetd.up.ac.za/thesis/available/etd-05252009-215044/.
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Pearmain, Deborah Louise. "A critical analysis of the law on health service delivery in South Africa." Thesis, University of Pretoria, 2004. http://hdl.handle.net/2263/26502.
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This thesis examines the law relating health care in South Africa rather than medical law which is a subset of this field. It attempts to synthesise five major traditional areas of law, namely international, constitutional, and administrative law, the law of contract and the law of delict, into a legal conceptual framework relating specifically to health care in South Africa. Systemic inconsistencies with regard to the central issue of health care across these five traditional fields are highlighted. The alignment of the various pre-existing areas of statutory and common law with the Constitution is an ongoing preoccupation of the executive, the judiciary, the legislature and academia. In the health care context, the thesis critically examines the extent to which such alignment has taken place and identifies areas in which further development is still necessary. It concludes that the correct approach to the constitutional right of access to health care services is to regard it as a unitary concept supported by each of the five traditional areas of law. The traditional division of law into categories of public and private and their further subdivision into, for instance, the law of delict and the law of contract is criticized. It promotes a fragmented approach to a central constitutional construct resulting in legal incongruencies. This is anathema to a constitutionally based legal system. There is no golden thread of commonality discernible within the various public international law instruments that contain references to rights relating to health and it is of limited practical use in South African health law. The rights in the Bill of Rights are interdependent and interconnected. The approach of the courts to the right of access to health care needs to be considerably broader than it is at present in order to fully embrace the idea of rights as a composite concept. Administrative law, especially in the public health sector, offers an alternative basis to pure contract for the provider-patient relationship. It is preferable to a contractual relationship because of the many inbuilt protections and legal requirements for administrative action. Contracts can be unfair but courts refuse to strike them down purely on this basis. Administrative action is much more likely to be struck down on grounds of unfairness: The law of contract as a legal vehicle for health service delivery is not ideal. This is due to the antiquated approach of South African courts to this area of law. There is still an almost complete failure to incorporate constitutional principles and values into the law of contract. The law of delict in relation to health care services has its blind spots. Although it seeks to place the claimant in the position in which he or she found himself prior to the unlawful act whereas the law of contract seeks to place him in the position he would have occupied had the contract been fulfilled, in the context of health care this is a notional distinction since contracts for health services seldom guarantee a specific outcome.Thesis (LLD)--University of Pretoria, 2004.
Public Law
unrestricted
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Du, Toit Gerhard. "The significance of postmodern theories of interpretation for contractual interpretation : a critical analysis." Thesis, Stellenbosch : University of Stellenbosch, 2006. http://hdl.handle.net/10019.1/1245.
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Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2006.The objective of this study is to examine the significance of postmodern insights regarding interpretation (especially the rejection of intentionalism) and subjectivity for contractual interpretation theory. In Part One (consisting of chapters 2-5), the leading postmodern insights on interpretation, individual autonomy, texts and intentionalism are discussed. This is done by analysing the present interpretive practice in four chapters: 1) Different theories of interpretation ranging from objectivism and natural law theories to post-structuralism are discussed in chapter 2. 2) In chapter 3 individual autonomy (as advocated by liberal theorists) is contrasted with communitarianism in order to problematize the notion of contracting parties as autonomous, self-regulating beings. By highlighting criticism against liberalism and communitarianism, and also by suggesting critical self-rule as an alternative, the assertion that contracting parties are autonomous and self-regulating is contested. 3) The process of textual definition is critically analysed with emphasis on the position reflected by the application of the parol-evidence rule and also post-structuralist ideas on the definition of texts in chapter 4. It is shown that textual definition consists of interpretation rather than identification. 4) The nature of intention and the process of intention “discovery” are analysed in chapter 5. Because of the centrality of intention in contractual practice, alternative theories on intention (and its role during interpretation) are postulated and it is suggested that post-structuralism can provide a critically reflective theory of intention. It is clear (from the critical analysis of intentionalism) that the way intention is presently approached is theoretically flawed. It is also apparent from the critique of liberal beliefs held regarding the nature of interpretation, subjectivity and the definition of texts that the theoretical foundations of these beliefs are fundamentally flawed. A critical re-imagination of contractual interpretation is necessary. In Part Two, questions about the justifiability of the present interpretive theories are posed. In chapter 6 the practical implications of a new theoretical basis for contractual interpretation are considered by examining the way various rules of interpretation are influenced by the new theoretical basis of interpretation. Three “rules” are examined: 1) The golden rule of interpretation is examined because of its reliance on intentionalist assumptions; 2) the parol-evidence rule is examined because of its relation to positivist assumptions about the definition of texts; 3) the relevance of bona fides as a substantial remedy during the interpretation of the contract is analysed to reveal assumptions about the nature of legal subjectivity in which the present consideration of the bona fides is grounded. It is shown that rules depend not on their content for operation, but rather on the assumptions upon which they are grounded. In short, we do not have to do away with our rules of contractual interpretation, but we have to re-evaluate how we apply those rules. The final part of this dissertation consists of a summary of the conclusions drawn during the course of this study.
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Bayer, Elizabeth Anne. "A critical analysis of marine environmental indicators within regulatory and policy texts." Thesis, University of Hull, 2016. http://hydra.hull.ac.uk/resources/hull:16425.
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The use of indicators within marine legislation and policy is a developing phenomenon worldwide. What is less apparent, however, is the effectiveness of such policies in prompting regulatory or remedial responses and achieving particular conservation objectives. Even less well-understood are the relationships that develop between the science, policies, and law in these regulatory frameworks. As such, it is imperative to reach an understanding as to how scientific, economic and social goals are interconnected, and how they in turn influence indicator development. This gap in understanding provides the rationale for this work, which is to explore and explain the way in which law, policy and science interface in the context of marine regulations. The overall aim of this thesis is to provide a detailed, critical analysis of marine environmental indicators within regulatory and policy texts at the international, European and national levels. Furthermore, it measures the effectiveness of such indicators, as well as their foundation within science, by providing an examination of the operational efficiency of marine environmental indicators, with an emphasis on the techniques and approaches used to accommodate indicators and similar devices. It also analyzes the resultant relationships that have evolved between science, policy and legislation, with a particular focus on the utilization of indicators within national marine industries. The thesis also evaluates the understanding and application of indicators by non-technical personnel by demonstrating through case law review the courts’ stance on the utilization of evidence and expert testimony. This research also examines a variety of indicators used in support of the environmental management of the national marine aggregate-extraction industry. The central argument of this thesis is that indicators are relevant within policy and legislative agenda – they create dialogue and bridge communication gaps. This thesis demonstrates that when founded upon the discussed criteria, indicators allow for effective communication and provide the opportunity to gauge the success of current marine management techniques within international, European and national set agenda. Whether scientifically or politically driven, they are crucial to the successful development and implementation of environmental policies and legislation world-wide. They cross various disciplines (scientific, political, legal) and when properly understood and applied, can assess progress in achieving political and legal goals, ensuring that the needs of humans and the environment are equally balanced.
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Varzari, Jennifer Kerry. "Revealing or remedying discrimination?, critical discourse analysis and environmental law in Alberta." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2001. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp05/MQ65059.pdf.
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MCGREGOR, JOAN LUCY. "A CRITICAL ANALYSIS OF "COERCION" AND ITS APPLICATION TO CONTRACT LAW (FREEDOM, DURESS)." Diss., The University of Arizona, 1985. http://hdl.handle.net/10150/187954.
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The value of liberty is one of our most fundamental commitments. Given this commitment, judgments concerning coercion are of profound moral significance. The concept of liberty is usually defined as the absence of coercion; so defined, the very important moral and political value of liberty is safeguarded only when coercion is excluded. Presently, the concept of coercion is inadequately defined, and in drastic need of clear analysis. An important area in which individuals express their liberty is through voluntary agreements made under the law of contracts. The moral defense of the law of contracts rests on the belief that contracts facilitate individuals' opportunities for self-determination; liberty being a necessary condition for self-determination necessitates the exclusion of all forms of coercion in contracts. Market interactions have a particular character and occur within a specific institutional framework. Using economic models, I argue that other accounts of coercion have failed to capture the unique character of coercion in market interactions. The "normalcy" criterion, which is the most prevalent approach to distinguishing coercive proposals from noncoercive ones, assumes that a person's status quo is an appropriate point from which to distinguish coercive proposals from noncoercive proposals. I argue that under certain ideal conditions in the market, a perfectly competitive market, this assumption might be legitimate. I utilize game-theoretic models to analyze the nature of coercive proposals in an imperfectly competitive market. The bargaining advantages that agents have, which are a function of certain background conditions, give them bargaining power over others with whom they negotiate. I argue that when the following conditions are present coercion can arise in the market: the status quo of an agent (or his "threat-advantage") is stronger in relation to the agent with whom he is dealing and he takes advantage of his stronger bargaining position, exploiting the deprivation that the weaker agent will face if he does not comply. I apply this analysis of coercion to the law of contracts, specifically, to the doctrines of duress and unconscionability.
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Aleid, Mohammed S. "A critical analysis of investor protection under Saudi Stock market regulations." Thesis, University of Essex, 2018. http://repository.essex.ac.uk/22110/.
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As the government of Saudi Arabia begins a major evolutionary process of economic expansion, the Saudi stock market has become the focus of increased attention. The legal framework that regulates the stock market is still considered to be underdeveloped, as only recently, in 2003, did the Saudi legislator issue a Capital Market Law (2003) and create a regulatory body vested with its enforcement. The securities market was built around this legislation, which helped to stimulate the economy by attracting investor. However, the Saudi stock market experienced a big crash in February 2006, which had a profound impact in heavy losses for large and small investors. The practical application of these new laws brought to light some shortcomings in the regulations of the stock market, and specifically, the need for the legal protection of investor. Hence, the overarching aim of this thesis is to focus particular on four issues: on the question of whether or not the existing regulations of the Saudi stock market adequately protects investor from poor disclosure, insider trading and market manipulation induced partly by market brokers. Thus, there are four primary objectives of this thesis: to enhance the effectiveness of existing rules to secure a suitable level of protection for investor against poor disclosure, market abuse and illegal practices by broker; to increase investor confidence and attractiveness of the market; to prevent a future repeat of the stock market collapse and avoid the steps that caused it; and finally, to provide useful material for Saudi Capital Market Law (2003) reforms in the future. In order to examine these sensitive issues, the thesis will first examine whether or not the disclosure regulations of the Saudi stock market provide adequate protection to investor and secondly assess the effectiveness of the legal framework of insider trading regulations for preventing insider trading. Third, it will ascertain how well the the law defines market manipulation and covers the most common forms of market manipulation under Saudi securities law. Lastly it will explore the responsibility that brokers in the Saudi stock market have to achieve the greatest degree of protection for investor.
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Mkhize, Vukani. "A critical analysis of the tax implications for small and micro businesses." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1338.
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The South African economy has seen an increase in small businesses since 1994. This increase has been caused by an increase in unemployment rate and government interventions to promote small businesses. The government has through the National Treasury introduced various tax legislations to simplify and facilitate the tax processes that small businesses have to comply with. The discussion contained in this treatise seeks to critically analyse the tax implications for small and micro businesses. One of the small business tax legislations, Small Business Corporations, is discussed in chapter 2. The Small Business Corporation legislation provides for two key concessions to qualifying small businesses. The first concession is the progressive tax rates that are lower than normal tax rates at taxable income level below R300 000. The second concession is the special capital allowances that the qualifying small business is entitled to. The tax amnesty for small businesses was introduced in July 2006 to provide an opportunity to small businesses which were not up to date with their tax affairs, to regularise their tax affairs. Small businesses had to meet certain requirements and pay an amnesty levy ranging from 2 to 5 percent of their taxable income. The tax amnesty on small businesses was not as effective as intended, however a slight increase in the South African taxpayer base was achieved. The voluntary disclosure programme has recently been introduced in November 2010, to provide an opportunity for all businesses to voluntarily disclose their previous defaults without being subjected to criminal prosecution and penalties. The government further attempted to simplify the tax compliance process by introducing turnover tax legislation. The turnover tax provides for a single tax system that does away with the need to account for normal tax, capital gains tax, secondary tax on companies and value added tax. The turnover tax system is optional to qualifying small businesses. The turnover tax is calculated by simply applying a tax rate to taxable turnover. Small businesses need carefully consider whether turnover tax will be beneficial to them. It is not advisable for small businesses that are making losses to adopt turnover tax. Another small business tax legislation that promises to be effective is the venture capital incentive. This legislation provides for deduction of expenditure actually incurred in the acquisition of shares by qualifying businesses. It appears that, given the challenges that small businesses still face, the government still has a lot more to do to simplify the tax process for small businesses.
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Portellas, Laverne Fleur. "A critical analysis of child trafficking laws and policies in South Africa." Master's thesis, University of Cape Town, 2011. http://hdl.handle.net/11427/12665.
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Includes bibliographical references.The trafficking of children has been recognised by the international community as a transnational organised crime that affects children globally. As the child rights movement has grown in momentum over the last few decades, so has the concern regarding the exploitation of children. Child trafficking is certainly one of the gravest forms of abuse currently perpetuated against a child and his/her rights. Despite the numerous policy documents, international treaties and various other legal documents prohibiting the sale of children for any purpose; these documents have not resulted in the decrease or elimination of child trafficking. This paper will engage with child trafficking through a human rights lens in order to highlight the full extent of child abuse perpetuated by child trafficking. It is due to the very nature of child trafficking that resulted in the international and regional community enacting legal instruments to deal with different aspects of this crime. These instruments require states to prevent and punish the trafficking of children. This paper will examine South Africa s child trafficking laws and policies having regard to its international and regional obligations.
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Kamwimbi, Kasongo Theodore. "Forced child labour a critical analysis of the Democratic Republic of Congo' s." Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4706.
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Hagelüken, Alexandra. "The impact of EC Law and WTO Law on domestic law, a critical analysis of the case law of the European Court of Justice." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0025/MQ50934.pdf.
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Hagelüken, Alexandra. "The impact of EC law and WTO law on domestic law : a critical analysis of the case law of the European Court of Justice." Thesis, McGill University, 1998. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=21683.
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The relationship between, on the one hand, European Community Law and World Trade Organization Law and, on the other hand, domestic law lies at the heart of this thesis The European Treaty and the World Trade Organization Agreements have far reaching impacts not only on their Member States, but also on individuals. It is of crucial importance for the protection of individual rights and for the effective enforcement of these treaties whether individuals can invoke them before their national courts. After giving an overview of the general theories, which exist in international law with respect to the impact of international treaties on domestic law, this thesis analyzes the case law of the European Court of Justice regarding the impact of EC Law on domestic law and the impact of GATT 1947/WTO Law on the European Community. A review of this case law will demonstrate that the European Court has effectively promoted European integration by the doctrines of direct applicability, direct effect and supremacy. In contrast, the European Court has so far denied that individuals or Member States can challenge the validity of EC Law by invoking provisions of the GATT 1947. It is not clear whether the Court will change its attitude with respect to the WTO Agreements. This thesis will demonstrate that the general denial of direct effect to GATT/WTO Law is not based on legal reasons. With respect to the European Community, individuals must be allowed to rely at least on some of the provisions.
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Laher, Ismail. "A critical analysis of employment equity measures in South Africa." Thesis, Rhodes University, 2007. http://hdl.handle.net/10962/d1003195.
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This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
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Hillstead, Coy J. "A comprehensive literature review and critical analysis of human resource management trends in law enforcement." Menomonie, WI : University of Wisconsin--Stout, 2007. http://www.uwstout.edu/lib/thesis/2007/2007hillsteadc.pdf.
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潘榮 and Wing Poon. "A critical analysis of the marriage law of the People's Republic of China." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1991. http://hub.hku.hk/bib/B31972779.
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Leverick, Fiona. "A critical analysis of the law of self-defence in Scotland and England." Thesis, University of Aberdeen, 2003. http://digitool.abdn.ac.uk/R?func=search-advanced-go&find_code1=WSN&request1=AAIU172065.
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This thesis is a critical analysis of the law of self-defence in Scotland and England. It is argued that it is far more difficult to justify the use of lethal force in self-defence than is commonly assumed and that, drawing on the work of Uniacke, the most convincing justification is on the basis of a right to life, accompanied by a theory of forfeiture. That is, the victim of an attack is entitled to protect herself from an aggressor who threatens her right to life. The reason why she is permitted to kill the aggressor, but the aggressor is not permitted to kill her, is because an aggressor forfeits her right to life by virtue of becoming an unjust immediate threat to the life of another. However, the right to life is seen as a fundamental right that should be respected in relation to all human beings, even aggressors, as far as is reasonably possible. This is because, unlike almost all other types of loss, a deprivation of life is something from which the victim can never recover and for which the victim can never be compensated. As such, it is argued that an aggressor's right to life is only forfeited at the point where it is no longer reasonably possible to save both the life of the victim and the life of the aggressor. On this basis, the thesis proceeds to argue that the law of self-defence should contain strict rules on when it is permissible to take the life of another human being. As such, relatively restrictive rules are proposed in relation to five specific aspects of self-defence law: retreat, mistake, self-generated self-defence, imminence and proportionality. It is suggested that Scots law conforms to these strict rules to a greater extent than does English law.
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Poon, Wing. "A critical analysis of the marriage law of the People's Republic of China." View the Table of Contents & Abstract, 1991. http://sunzi.lib.hku.hk/hkuto/record.jsp?B13019284.
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Gumboh, Esther. "A critical analysis of the impact of the Bill of Rights on punishment in Malawi." Doctoral thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15557.
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Malawi's penal regime has a long history of retributive and deterrent punishment and unfair trials. In the absence of a constitutional set up that recognised human rights and driven by the need to maintain colonial authority, punishment during the colonial period was largely premised on retribution and deterrence. The one-party regime that took over after independence was characterised by gross violation of human rights. The adoption of the Constitution in 1994 ushered in a more humane regime of punishment premised on human rights. Complemented by international law, the Bill of Rights has several provisions which clearly intend to create a penal system that is consistent with international standards. This study examines the extent to which punishment in Malawi reflects international and constitutional standards regarding the aims of punishment, the forms of punishment, and post-sentencing procedures. In answering this question, the study investigates whether, over 20 years after the adoption of the Constitution, Malawi has realised the promises of the Bill of Rights for punishment. It therefore analyses the aims of punishment, the forms of punishment, and release procedures to determine if they comply with Constitution. The findings of this thesis reveal that while some progress has been made in aligning the penal regime with constitutional and international standards, there are some aspects of punishment that are in conflict with these standards. The study proposes some solutions to address these gaps.
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Vlahoplus, John Christopher. "A critical analysis of the implications of precedent for the jurisprudence of Ronald Dworkin." Thesis, University of Oxford, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.305835.
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Gallegos, Zúñiga Jaime Ramiro. "Critical analysis of letters of credit test documents." Pontificia Universidad Católica del Perú, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/115531.
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This article discusses the documents’ test that must be practiced during the issuance of letters of credit, so that subjects acting in international trade can meet the obligations involved by participating entities and challenge deficiencies in such benefits —if it’s the case—.El presente artículo aborda el examen de los documentos que debe practicarse con ocasión de la emisión de cartas de crédito, con el objeto de que los sujetos que actúen en el comercio internacional puedan conocer las obligaciones de las entidades partícipes e impugnar —cuando fuese el caso—las deficiencias en tales prestaciones.
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Urbina, Molfino Francisco Javier. "A critical analysis of the proportionality test in human rights adjudication." Thesis, University of Oxford, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669893.
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In this thesis I argue against the proportionality test in human rights adjudication, and provide a framework for understanding the proportionality debate. I identify two accounts of proportionality. One sees proportionality as a doctrinal tool aimed at maximising rights and public interests. The other sees proportionality as allowing for open- ended moral reasoning. I analyse the two accounts and identify their main deficiencies. I argue against both conceptions, and conclude that defenders of proportionality are in the following dilemma: either proportionality is insensitive to important moral considerations related to human rights and their limitations, and thus it is an unsuitable tool for human rights adjudication; or proportionality can accommodate the relevant moral considerations, but at the price of leaving the judge undirected, unaided by the law. I will further argue that lack of guidance is a deficiency in legal adjudication, which has important negative effects.
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Stevens, Richard Arno. "The external relations of company groups in South African law : a critical comparative analysis." Thesis, Stellenbosch : University of Stellenbosch, 2011. http://hdl.handle.net/10019.1/6883.
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Thesis (LLD (Mercantile Law))--University of Stellenbosch, 2011.ENGLISH ABSTRACT: Groups of companies are part of the realities of the modern economic system. Despite the fact that such groups often function as a single economic entity, the legal point of departure remains that each company within the group of companies is a separate juristic person. The result of this is that a creditor of a company within the group can, in principle, only enforce his claim against the company which he contracted with or which caused him harm. Should he wish to claim from the holding company or other solvent companies within the group, he would have to rely on an exception to the doctrine of separate juristic personality, viz the possibility of piercing the socalled corporate veil. This dissertation is a comparative study of the extent to which the law protects a creditor of an insolvent company within a group. The applicable laws of Australia, Germany, New Zealand, the United Kingdom and the United States of America, were investigated and compared to the South African position. The dissertation concludes that the South African legal treatment of the problem is unsatisfactory and that the law should be amended through appropriate legislation.
AFRIKAANSE OPSOMMING: Maatskappygroepe is realiteite in die moderne ekonomiese wêreld. Ten spyte van die feit dat maatskappygroepe dikwels een ekonomiese entiteit vorm, huldig die reg die standpunt dat elke maatskappy binne ‘n groep maatskappye ‘n aparte regspersoon is. Die gevolg van hierdie standpunt is dat ‘n skuldeiser van ‘n maatskappy binne ‘n groep in beginsel slegs ‘n eis het teen die maatskappy met wie hy gekontrakteer het of wat hom skade berokken het. Indien hy ‘n eis teen die houermaatskappy of ander solvente maatskappye binne die groep wil instel, moet hy steun op ‘n uitsondering op die leerstuk van aparte regspersoonlikheid, te wete die moontlikheid om die sogenaamde korporatiewe sluier te deurdring. Hierdie proefskrif is ‘n regsvergelykende ondersoek van die beskerming van ‘n skuldeiser van ‘n insolvente maatskappy binne ‘n groep. Die toepaslike reg van Australië, Duitsland, Nieu-Seeland, die Verenigde Koninkryk en die Verenigde State van Amerika word ondersoek en vergelyk met die Suid-Afrikaanse regsposisie. Die proefskrif kom tot die gevolgtrekking dat die Suid-Afrikaanse regsreëling onbevredigend is en deur geskikte wetgewing gewysig moet word.
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Massicotte, Jodi-Anne. "Assessing the differential treatment of males and females in the criminal justice process, a critical analysis." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp05/mq20933.pdf.
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Babesail, Adel A. "The Vienna Conventions on diplomatic and consular relations and state practice : a critical analysis." Thesis, University of Westminster, 2001. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.251567.
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Vilho, Aina N. "A critical analysis of the protection of traditional knowledge within the Namibian legal system." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/13036.
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Includes bibliographical references.Namibia is well known for its unique climate and ecological profile hence its biodiversity, which comprises wild and cultivated species and varieties. The country’s relative isolation has contributed to the maintenance of a unique genetic resource base. There are many naturally occurring plants and animals that have been used since time immemorial by local people as a source of food security, primary health and for their general livelihood, which could be exploited for commercial purposes. There is a growing international interest in bio trade with, and bio prospecting in, Namibia. This paper examines Traditional Knowledge (TK) and Intellectual Property Rights (IPR’s)6within the Namibian context. It further examines whether the protection under the current Namibian intellectual property (IP) framework sufficiently protects all types of indigenous TK against exploitation. The rationale for the examination stems from a draft policy on ‘Access to Genetic Resources and the Protection of Associated Traditional Knowledge’. There is little knowledge about the genetic resources that have left Namibia, those that are still here, and their biological and conservation status. The associated problems, concerns and threats underscore the need for policies and legislation to regulate access to genetic resources, to protect TK and practices, and to facilitate the equitable sharing of benefits from the use of genetic resources.
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Chen, Yu-Jen 1957. "A Critical Analysis of Newspaper Development in Taiwan Since the Lifting of Martial Law." Thesis, University of North Texas, 1993. https://digital.library.unt.edu/ark:/67531/metadc500886/.
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This study reviews the changes in Taiwan's newspaper industry during its current period of transition. Contemporary newspaper development in Taiwan after the lifting of martial law in July 1987 is evaluated in relation to transformations in the newspaper marketplace, journalistic practices, labor relations, and freedom of expression. This study concludes that changes in Taiwan's newspaper business are closely related to changes in the country's political atmosphere. The lifting of the Ban of Newspaper brought freedoms for which journalists had fought for decades; however, journalistic quality has not improved at the same speed. Changes will continue in the journalism industry; whether it grows in a healthy way is a topic for future study.
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Baraza, Masha. "State law and the (post)colony : a critical analysis through group conflicts in Turkana." Thesis, University of Warwick, 2014. http://wrap.warwick.ac.uk/62108/.
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In documented incidents alone, between January 2006 and December 2009, 900 people were killed in 534 incidents of group conflict in Turkana. On the basis of this apparent lawlessness, the central research question queries whether the apparent inability of the state law and its institutions to manage group conflicts in Turkana districts denotes a crisis of application or a crisis of substance. Is the problem merely the extension of structures of state law such as courts, prosecutors, security agents, prisons and advocates to Turkana or does the crisis speak to a more fundamental challenge. The research argues the latter, that the relationship between state law and group conflicts in Turkana demands an interrogation of the conceptual and institutional dimensions of modern state law. The thesis interrogates how state law is incorporated; an apparatus of power through which certain regulative rationalities come to reframe the terrain upon which people in Turkana live and define their lives. In order to move state law in a radically improving direction, the research argues for a reorientation of rationalities and legality. The reorientation is advanced through two corresponding techniques that allude to the structural and perspectival elements of state law. Fashioned from amongst the unfinished representations of modernity and the initial task of conceiving a (post)colonial tension between regulation and emancipation, the first task involves building on those progressive aspects of state law that enhance its political legitimacy. The second requires the adoption of a transgressive mode of thinking described as 'knowledge-as-emancipation'. On the basis of these two prescriptions, state law can develop a more purposeful and emancipatory purpose within the conflict context of Turkana in particular, and Kenya in general.
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Nyathi, Noma Melinda. "The poverty of Law : a critical analysis of hate speech Jurisprudence in South Africa." Diss., University of Pretoria, 2018. http://hdl.handle.net/2263/65707.
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The main purpose of this dissertation was to illustrate the ways in which law is limited when it comes to addressing hate speech. The dissertation was set on the premise that law is fundamentally lacking in its capacity to deal with hate speech. Using a combination of approaches the dissertation exposed various gaps of law. Chapter one provided a synopsis of the current South Africa experience with race based hate speech. Most of the highlighted cases took place online, a new dynamic in social conflict. It outlined a number of assumptions which were reiterated throughout the paper. The second chapter compared apartheid and post-apartheid laws and revealed the key shortcoming of current hate speech legislation. It was proven that post-apartheid South Africa is drastically different from apartheid law, particularly the fact that so called racial hostility laws were criminalised, while today speech categorised as hate speech is treated as a civil matter. It was also demonstrated that the ideologies informing racial hostility laws included suppressing anti-apartheid voices, whereas current laws are rooted in promoting the basic rights to equality and dignity. On the negative side is the interest of the state to make imprisonment one of the penalties for “hate speech” through the awaited Hate Bill. The third chapter attempted a thematic critique of how courts adjudicate over hate speech cases. It was found that matters involving identity politics are complex and that these cases are at the risk of being watered down through reconciliatory discourses, including the Ubuntu discourse. South Africa’s law is implicated in not affording apartheid’s victims to express their anger hence hate speech is a potential silencing tool. As such continued reproduction of reconciliatory narratives appears to have stifled courts from thinking more innovatively about developing hate speech jurisprudence of substantive aspects.Mini Dissertation (LLM)--University of Pretoria, 2018.
Jurisprudence
MPhil
Unrestricted
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Ndlovu, Sibonelo. "Critical Analysis of Ex Post Facto Environmental Impact Assessment Authorisations in South African Law." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4488.
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In this dissertation I consider the issue of ex post facto EIA authorisations from the inception of the EIA regime in South African law to present. At the heart of the analysis is the question of whether, at different stages of the evolvement of the EIA regime, such authorisations are provided for in South African law, adequately or at all.
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Lekakeny, Ruth Nekura. "The elusive justice for women: a critical analysis of rape law and practice in Kenya." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15207.
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This thesis seeks to uncover the challenges encountered by women and girl victims of rape in seeking recourse through the criminal justice system in Kenya. To do this I focus on their experiences in three major points of service provision, i.e. the police, the health facilities and the courts. I then explore, as a secondary research question, whether an integrated service provision approach provides solutions to these challenges. Article 48 of the Constitution of Kenya provides that 'The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice'27 This obligation places a tall order on the state and all its agents to ensure that anyone in pursuit of justice should access it with the minimum obstacles.
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Watts, Samantha. "Protection of the African lion: a critical analysis of the current international legal regime." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15162.
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The African lion is in danger of rapid population decline and possible extinction in the near future. Two decades ago there was an abundance of African lions, roughly 100 000, on the continent. But at present there are less than 32 000, some even believe there to be as little as 15 000, left. This decline is mainly due to threats arising from habitat loss, retaliatory and traditional killing, the trophy hunting industry and trade related issues. Consequently, African lions are listed as 'vulnerable' on the International Union for Conservation of Nature Red List of Threatened Species. This listing is being contested by commentators who believe that the species now requires an 'endangered' status. African lion populations, and the threats to the species, extend across state boundaries. Therefore, international law is of particular importance in providing conservation and protection measures to the species. Creating conservation obligations at a global level, allows for more uniform action, implementation and enforcement of legislation at regional and local levels. This dissertation looks at each threat to the African lion population in detail. Then, an assessment is made as to whether there is an international legal regime pertaining to each of these threats, and whether that regime is adequate. There has been an increase in arguments that the international legal framework pertaining to the African lion is in fact unacceptable for the protection of the species. This dissertation provides some clarity on the current international and regional legal regime pertaining to the African lion, and addresses both the positive and negative aspects of this regime. Consequently, it is found that the international legal regime for the African lion is ineffective in achieving their protection and survival. Recommendations are made on what needs to change, and the best way forward, through an international legal lens. The security and viability of the African lion is uncertain, and legal protection of the species needs to be clear to start ensuring their survival in the future. African lions are already regionally endangered in some parts of Africa, and the threats to the species are only increasing. Therefore, it is obvious that some legal changes need to be made, to ensure greater protection of the African lion, at an international level.
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Tsangarakis, Andreas. "A Critical and Comparative Analysis on the Effect of Business Rescue on Creditors’ Rights against Sureties." Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29546.
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Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.
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Wahlström, Madeleine. "Residential Rental Determination in Sweden and Germany : A critical analysis." Thesis, KTH, Fastigheter och byggande, 2011. http://urn.kb.se/resolve?urn=urn:nbn:se:kth:diva-50040.
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The Swedish residential rental system and market has been discussed and criticized diligently the past years. A reformed rental law was therefore the 1 stof January 2011 implemented. This has the purpose to better reflect the consumer’s priorities with a more market related rental determination. With this change, it is of interest to compare it to another rental system, with market rents. In the German rental system, free rental setting is allowed in new leases. This thesis aims to evaluate and compare the rental system in Sweden and Germany. The comparison was done after reading several reports, articles and literature as well as interviews with Swedish and German actors. Results show that the reformed Swedish law will not lead to major changes, though it might lead to a more adequate rental determination system. The analysis of the German system, with its free rental setting for new leases show that is better functioning than the Swedish. It is however positive that the new Swedish law incorporates more market related variables, even though the determination of a market rent is quite complex. A free rental setting allocates diversity in the market and contributes to a heterogeneous market, as it is possible to meet different consumers demand. The rental market can be expanded though, with a free rental setting when subletting condominiums. A conclusion from the analysis is that Sweden should strive to adopt a German system with free rental setting in new leases.
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Rushwaya, Chipo Irene. "A critical analysis of the legislative framework regulating intercountry adoption in South Africa and Ghana." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/9176.
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Includes bibliographical references.There are millions of children worldwide without parental care, families and homes. The HIV/AIDS pandemic, civil wars and poverty among other factors have contributed to the population of millions of orphans and destitute children in Africa. The Convention on the Rights of the Child (CRC) provides that ‘a child temporarily or permanently deprived of his or her family environment, or in whose best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.’ Thus, States Parties have an obligation to provide alternative care for such children in accordance with their national law. Such care includes ‘foster placement, kafalah of Islamic law, adoption and placement in suitable institutions.’ The CRC also recognizes intercountry adoption as one of the many possible solutions to children deprived of a family environment or parental care. However, it is only considered as a last resort if the child cannot be cared for in the country of origin.