Dissertations / Theses on the topic 'Divorce Law and legislation South Australia'
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1
Brooklyn, Bridget. "Something old, something new : divorce and divorce law in South Australia, 1859-1918." Title page, contents and summary only, 1988. http://web4.library.adelaide.edu.au/theses/09PH/09phb872.pdf.
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Radbone, Ian. "A history of land transport regulation in South Australia : the relevance of public choice theory." Title page, contents and summary only, 1989. http://web4.library.adelaide.edu.au/theses/09PH/09phr124.pdf.
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Clark, Brigitte. "An analysis of the effects of marriage, divorce and death on the child maintenance obligation in South African law with some comparative perspectives." Thesis, Rhodes University, 2000. http://hdl.handle.net/10962/d1003184.
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This thesis analyses the law of child maintenance in South Africa with particular reference to the effects of marriage, death and divorce on such an obligation. In the introductory section, the types of South African family are demographically and statistically sketched, from a socio-legal perspective with some reliance on interdisciplinary research to assess the prevalence of the AID/HIV epidemic in South Africa, and the effects of poverty and ageing on the incidence of marriage and death. In the second part of the thesis, the parental child maintenance obligation is analysed in the common law context. The effects of serial marriage and arificial conception are also analysed with regard to their effect on the concept of biological parent. The nature and definition of parenthood is examined and the diverse and fluid nature of parenthood in South African society is stressed, particularly in relation to children's welfare. One of the aims of the thesis is to indicate how parenthood refers to a fluid set of social practices which are both biologically and culturally situated and thus have a complex effect on the maintenance obligation. The procedural problems of enforcement are also analysed in the light of recent amendments to the law in terms of the Maintenance Act 99 of 1998 (not yet in force) and some further proposals for reform in this area are proposed. The third part of the thesis examines the state obligation to maintain children, especially in the light of the state's commitments to children in terms of the Constitution of the Republic of South Africa Act (l08 of 1996) and its international commitments in terms of the United Nations Convention on the Rights of the Child which was ratified by the South African government on 16 June 1995. In the fourth part of the thesis, there is some comparative analysis, firstly, of the procedural law reforms proposed in Namibia as a result of detailed research done there. Secondly, alternative methods of assessing and enforcing child maintenance obligations in Australia and England are examined and briefly assessed in relation to their possible implementation and efficacy in a South African context. Finally, the thesis concludes with an overall synopsis of the position in this country and some proposals for reform in the light of the international and constitutional commitments of the state.
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Du, Preez Johannes Lodewicus. "Pension interest at divorce : a guide to the treatment of pension interest at divorce with reference to the history, the changes made to legislation, and the expected future outcome as based upon the current outstanding issues to be addressed by the legislature and the Minister of Finance." Thesis, Stellenbosch : Stellenbosch University, 2010. http://hdl.handle.net/10019.1/19878.
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Thesis (MAcc) -- Stellenbosch University, 2010.ENGLISH ABSTRACT: Due to a number of legislative changes, the tax treatment of pension interest at divorce has become a complicated issue, as it is not only affected by the Income Tax Act, but also by the Pension Funds Act as well as the Divorce Act. Because these changes are still fairly new to the industry, there are still a couple of technical issues on which the industry is not clear. In practice there are many articles and writers trying to give some form of guidance regarding the technical issues of pension interest at divorce. The study will refer to case law that affected the changes made to the Pension Funds Act, which led to the institution of the “clean-break” principle. Some of the technical issues with regard to a payment of an award made to a non-member spouse by a divorce order will be included along with a discussion on difficulties and uncertainties arising from the “clean-break” principle. The focus of the study will then be directed towards changes made to the Income Tax Act. Specific reference will be made to the tax on an award made to a non-member spouse by a divorce order. In some cases the tax on such an award will be recovered from the member spouse. The Income Tax Act does however provide for a right of recovery, which will be discussed. The payment of the tax from the member’s individual reserve however constitutes an additional accrual according to the Income Tax Act, which leads to a tax-on-tax issue. A discussion on GN33 will be included, as GN33 addresses the tax-on-tax issue. A chapter on preservation funds is included, as it is important to understand the working of these funds on when a non-member spouse has the option to transfer his/her pension interest to such a fund. The study will then look at an inequitable position in which the member finds him/herself when party to a divorce order made before 13 September 2007. Due to the changes made to the Income Tax Act, a situation arose where the member spouse looses out on all or part of his/her R300 000 tax free benefit as allowed by the Income Tax Act for withdrawals from his/her retirement funds. The study will include considerations for financial planning. The industry is placing more and more emphasis on sound financial planning, and it is therefore important to understand the key considerations, which an advisor or a party to a divorce should consider. The study will include a discussion on some of the outstanding issues, which the industry expects the legislature to address in the near future. As the changes to the Income Tax Act are ever changing and the discussion on pension interest at divorce is still a new topic under discussion, the industry is keeping an eye on the expected changes from the finance ministry and the legislature.
AFRIKAANSE OPSOMMING: As gevolg van ’n aantal veranderinge in wetgewing, het die belastinghantering van pensioenbelang by egskeiding ’n ingewikkelde kwessie geword, aangesien dit nie net deur die Inkomstebelastingwet beïnvloed word nie, maar ook deur die Pensioenfondswet sowel as die Egskeidingswet. Die studie sal verwys na regspraak wat aanleiding gegee het tot die veranderinge wat in die Pensioenfondswet gemaak is en wat gelei het tot die instelling van die “skoon-breuk”-beginsel. Sommige van die tegniese vrae wat betref die betaling van ’n toekenning aan ’n nie-lid-gade by ’n egskeidingsbevel sal ingesluit word saam met ’n bespreking van probleme en onsekerhede wat uit die “skoon-breuk”-beginsel voortspruit. Die fokus van die studie sal dan gerig word op veranderinge wat in die Inkomstebelastingwet aangebring is. As gevolg van veranderinge in wetgewing op spesifieke datums, word ’n toekenning wat aan ’n nie-lid-gade gemaak is in terme van ’n egskeidingsbevel belas onder drie verskillende belastingregimes, afhangende van die datum van die egskeidingsbevel. Daar sal spesifiek verwys word na die belasting op ’n toekenning aan ’n nie-lid-gade. In sommige gevalle sal die belasting op so ’n toekenning verhaal word van die lid-gade. Die Inkomstebelastingwet maak egter voorsiening vir ’n verhalingsreg wat ook bespreek sal word. Die betaling van die belasting vanuit die lid-gade se minimum individuele reserwe word egter erken as ’n addisionele toevalling in terme van die Inkomstebelastingwet wat lei tot ’n belasting-op-belasting kwessie. GN33 sal bespreek word aangesien hierdie algemene nota die kwessie aanspreek. ’n Hoofstuk oor bewaringsfondse word ingesluit, aangesien dit belangrik is om die werking van hierdie fondse te verstaan wanneer ’n nie-lid-gade die opsie het om sy/haar pensioenbelang na so ’n fonds oor te dra. Die studie sal dan kyk na ’n onbillike posisie waarin die lid hom/haarself bevind as hy/sy party was by ’n egskeiding voor 13 September 2007. As gevolg van die veranderinge wat in die Inkomstebelastingwet aangebring is, het ’n situasie ontstaan waar die lid eggenoot ’n gedeelte van sy/haar R300 000 belastingvrye voordeel vir onttrekkings van sy/haar aftreefonds, verloor. Die studie sal oorwegings vir finansiële beplanning insluit. Die bedryf plaas al meer klem op omvattende finansiële beplanning en dit is dus belangrik om die deurslaggewende oorwegings waarmee ’n adviseur of ’n party by ’n egskeiding moet rekening hou, te verstaan. Ten slotte sal die studie ’n bespreking insluit van sommige uitstaande kwessies wat die industrie verwag die wetgewer in die toekoms moet aanspreek.
5
Venter, Debra. "The UNCITRAL model law on international commercial arbitration as basis for international and domestic arbitration in South Africa / Debra Venter." Thesis, North-West University, 2010. http://hdl.handle.net/10394/4930.
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Commercial arbitration is growing in importance in the modern world. People often use arbitration to ensure adjudication by an expert in the field and although arbitration may not always be quicker, its importance continues to grow especially in international commercial disputes.1 Effective arbitration procedures will have positive consequences for the economical and political relationships between countries.2
The Arbitration Act 42 of 1965 might have sufficed in the past, but as international commercial arbitration is ever increasing and changing, this act has become out–dated. It does not effectively facilitate international commercial arbitration. The Act was primarily designed with domestic commercial arbitration in mind and therefore it is of limited assistance in the international commercial arbitration sphere.
The United Nations Commission on International Trade Law3 has developed the Model Law on International Commercial Arbitration.4 This Model Law or variations thereof can be adopted by a country to regulate international commercial arbitration.5 Many countries choose to adopt the Model Law. The reasons vary but some are that the country’s own arbitration laws were out–dated and needed replacement. The Model Law has proved to be effective and it has become a benchmark for good arbitration legislation.6 Some countries have even adopted the Model Law for use in domestic commercial arbitration disputes. The South African Law Commission7 published a report in 1998 dealing with the possible application of the Model Law on international commercial arbitration in South Africa. It drafted a Draft Bill on International Arbitration (not as of yet promulgated) based on the Model Law.9 One of the points of discussion in the report of the Commission was whether the Model Law should also be made applicable to domestic commercial arbitration in South Africa. The conclusion was that domestic and international arbitration should be dealt with separately and that the present Act regulating domestic arbitration should be amended but not replaced by the Model Law. This implies two arbitration regimes: the International Arbitration Act (dealing only with international commercial arbitration); and the Arbitration Act (dealing only with domestic commercial arbitration) After the Commission’s report had been studied and South Africa’s legal position had been compared with Australia’s legal position, it is conlcuded that Australia is a good example to follow in regard to arbitration practices. It is, however, important to keep South Africa’s own background in mind. A good point made by Australia, is the fact that international commercial arbitration legislation and domestic commercial arbitration legislation, should be kept separate. This will bring about effectiveness and clarity for the users of the said legislation. Furthermore, as end conclusion, the Commission’s view is not favoured in regard to the fact that South Africa’s domestic arbitration legislation should not be based on the UNCITRAL Model Law. It would be a good idea to follow suit with Australia and base both South Africa’s international and domestic commercial arbitration legislation on the UNCITRAL Model Law.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.
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Osman, Elizabeth Helen. "Rural land sharing communities in South Australia : planning and legal constraints to their development." Title page, contents and abstract only, 1991. http://web4.library.adelaide.edu.au/theses/09ENV/09envo83.pdf.
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Bibliography: leaves 103-106. This research is concerned with rural land sharing communities in South Australia. The state's planning system is examined to see what mechanisms it possesses for dealing with communal or any other unconventional development, and what the main planning constraints are. A case study of an actual development application for a rural land sharing community is examined.
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Hing, Nerilee, University of Western Sydney, and Australian Institute for Gambling Research. "Changing fortunes : past, present and future perspectives on the management of problem gambling by New South Wales registered clubs." THESIS_XXX_AIGR_Hing_N.xml, 2000. http://handle.uws.edu.au:8081/1959.7/774.
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The purpose of this study is to examine, from past, present and future perspectives how registered clubs in New South Wales (NSW), Australia strategically manage problem gambling in their machine gambling operations. Seven stages of research are presented and discussed in some detail. The final stage considers implications of key developments during 1998-1999 for the future management of problem gambling by NSW clubs. It was found that by the end 1999, the future direction of NSW in addressing problem gambling pointed toward a combination of legislation and self-regulation, under the leadership of the Registered Clubs Association of New South Wales. The thesis concludes by identifying seven key factors that emerged from the findings as influencing the way in which NSW clubs have managed problem gambling. These are presented as a theoretical framework with potential utility for future investigations of how organisations manage their social impacts.Doctor of Philosophy (PhD)
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Jones, Kelly. "Prevalence and predictors of non-smoking policies in South Australian restaurants, hotels and other public places." Title page, abstract and table of contents only, 2001. http://web4.library.adelaide.edu.au/theses/09MPM/09mpmj769.pdf.
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Pillay, Neermala Neelavathy. "Assessed losses: the trade and income from trade requirements as set out in section 20 of the Income Tax Act of 1962." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1670.
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Section 20 of the Income Tax Act, No 58 of 1962 allows a taxpayer that incurs an assessed loss to carry forward the balance of assessed loss incurred, to be set off against taxable income earned in or added to losses incurred in future years. The issues regarding the carry forward of assessed losses in terms of section 20 is complex and in terms of the said section, a company is only entitled to set off its assessed loss from the previous year against its taxable income in the current year, if the taxpayer has carried on a trade during the current year and has derived income from that trade. Under the provisions of section 20(2A), a taxpayer other than a company can utilise an assessed loss even if no trading has been conducted. Assessed losses of natural persons, may however be ring-fenced. The aim of this treatise was twofold. Firstly it was to gain clarity on the „trade‟ and „income from trade‟ issues and secondly to compare South African legislation with that of Australia, with a view to recommending a change in our rules regarding the treatment of assessed losses in the context of companies. The critical lessons to be learned from the cases presented, is that liquidators, creditors and others must ensure that the company continues trading in order to x keep the assessed losses valid. Realisation of assets (including stock), and the collection of outstanding debts during liquidation does not constitute the carrying on of a trade in terms of s 20(1). The continuity of trade is an important element in regard to the carry forward of assessed losses to be utilised in the current and future years. Therefore it is important that a company carries on some activity that falls within the definition of trade. In the landmark case of SA Bazaars, it was held that a company did not have to trade continuously throughout the year to qualify for the set-off of the assessed loss or carry forward of the assessed loss, that is, to trade for say part of the year. The court however left open the issue of whether it was necessary to derive income from that trade. In order to clarify the issues regarding assessed losses, SARS issued Interpretation Note 33 granting taxpayers a concession in certain cases where a company has traded, but not derived income from that trade. But in ITC 1830, the court ruled that a company must trade and must derive income from that trade in order to carry forward its assessed loss, which effectively means that SARS cannot apply Interpretation Note 33. SARS does not have the authority to make concession which is contrary to the wording of the Act. xi In Australia, operating losses can be carried forward indefinitely to be set-off against future income, provided a company meets the more than 50% continuity of ownership test. Where the continuity test fails, losses can be deducted if the same business is carried on in the income year (the same business test). From the research conducted and in order to solve the issues surrounding the carry forward of assessed losses it was suggested that one of the following be adopted :- The method used in Australia for the carry forward of assessed losses., or A decision of the Supreme Court of Appeal is needed for a departure from the literal meaning of the words pertaining to the requirements regarding the carry forward of assessed losses. Furthermore, to clarify the definition of „income‟, as used in the context of s20, is it gross income less exempt income or taxable income?. If section 20 relates to taxable income, then an assessed loss will never be increased, which it is submitted, is not what the legislature intended. Section 20 ought to be revisited to eliminate any uncertainty about the income requirement and in the context in which the word „income‟ is used in that section.
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Lake, Rosalind. "Discrimination against people with mental health problems in the workplace : a comparative analysis." Thesis, Rhodes University, 2006. http://hdl.handle.net/10962/d1005712.
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For a long time the rights of disabled persons have been ignored worldwide. A major obstacle faced by disabled persons is discrimination in the workplace. Due to the development of a social approach to disability and the efforts of the Disability Rights Movement, legislation has been passed throughout the world to improve this dire situation. The thesis considers the efficacy of some of these statutes. It is concluded that stigma and negative stereotypes remain a constant hurdle in overcoming discrimination. The forthcoming UN Disability Convention is demonstrative of the recognition of the importance of the needs and rights of disabled people. The convention proposes some innovative measures to overcome stigma and stereotyping. Mental health problems constitute one of the leading causes of disability. The thesis explores how people with mental health problems fit within the concept of people with disabilities and whether they are included in anti-discrimination legislation and affirmative action measures. Special attention is given to statutory definitions of disability, the different forms of discrimination and the concept of reasonable accommodation. A comparative approach is taken to analyse how South Africa's disability law measures up against that of Britain and Australia in terms of its substantive provisions and enforcement thereof. In considering the South African position American and Canadian jurisprudence is consulted in order to aid in interpretation. It is concluded that although South Africa has a comparatively good legislative framework, it is held back by an overly restrictive and medically focused definition of disability. As a result many individuals with mental health difficulties, desirous of obtaining and retaining employment may be excluded from protection against discrimination in the workplace. It is argued that it will be necessary either to amend the Employment Equity Act or for the courts to adhere strictly to the concept of substantive equality in order to ensure that the rights and dignity of people with mental health difficulties are adequately protected.
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Lemar, Susan. "Control, compulsion and controversy: venereal diseases in Adelaide and Edinburgh 1910-1947." Title page, contents and abstract only, 2001. http://web4.library.adelaide.edu.au/theses/09PH/09phl548.pdf.
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Includes bibliographical references (leaves 280-305). Argues that despite the liberal use of social control theory in the literature on the social history of venereal diseases, rationale discourses do not necessarily lead to government intervention. Comparative analysis reveals that culturally similar locations can experience similar impulses and constraints to the development of social policy under differing constitutional arrangements.
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Schultz, Helga. "A legal discussion of the development of family law mediation in South African law, with comparisons drawn mainly with the Australian family law system." Thesis, 2011. http://hdl.handle.net/10413/6396.
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Spitz, Volker Gerhard Anton. "A comparative analysis of the equalisation of pension benefits under South African and German law." Diss., 1992. http://hdl.handle.net/10500/16098.
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The recognition in law of pension benefits and expectancies, as a
matrimonial asset which may be subject to certain claims (and
counterclaims), occured in South Africa in 1989. The starting point of this
development was an investigation in 1984, on: "the possibility of making
provisions for a divorced woman to share in the pension benefits of her
former husband ". This investigation came about, in South Africa, after
the matter had already been accepted, in many foreign legals systems, as a
well-established, and most important concept of family law.
The obvious question for the South African legislature was which of the
pension-sharing schemes throughout the world would best serve as a
model. Since the South African accrual system was largely based on the
German Zugewinngemeinschaft, it seemed only natural that a close
comparative study should be made of Germany's Versorgungsausgleich
scheme.
It is one of the aims of this thesis to point out whether and to what extent
South Africa followed the German example. To do so, it will be necessary
to examine first the different legal situations which were prevalent before
and after the legal changes in the two countries and to elaborate on the
reasons which led to these changes. The discussion in chapter three of how
the German system of equalisation of pension expectancies, the so-called
Versorgungsausgleich, is applied, will facilitate a comprehensive
comparison with the South African scheme.
The questions to be answered in the fifth chapter are whether it is
appropriate to examine the equalisation of pension expectancies under
South African law, which was only recently introduced, in a comparison
with the German system and whether it is possible to speak of a
Versorgungsausgleich when referring to the South African situation.
Whenever possible, I have attempted to suggest solutions that may appear
acceptable.
To conclude the thesis, certain pension sharing problems arising under
South African private international law will be briefly commented upon.Private Law
LLM
14
Makola, Thulelo Mmakola. "A comparative legal analysis of the effects of divorce on marital property." Diss., 2018. http://hdl.handle.net/10500/24843.
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The movement of people from county to country brought about an increase in international marriages. However, South African private international law rules with regard to the proprietary consequences of marriage are not on par with their foreign counterparts. The prejudicial rule which governs proprietary consequences of marriage has raised difficulties for our courts in past and recent cases. The advent of a new constitutional dispensation in South Africa forbids discrimination based on sex, gender and marital status. Furthermore, the question is asked whether parties to a marriage with a foreign matrimonial domicile may rely on section 7(3) of the Divorce Act 70 of 1979. The classification of redistribution orders in private international law matters has given rise to uncertainty.
The objectives of the study are to suggest workable alternatives to the current connecting factor for proprietary consequences of marriage in South African private international law and to investigate the availability of redistribution orders to spouses applying for divorce in South Africa.Private Law
LL. M.
15
Al, Qudah Mouaid, University of Western Sydney, College of Law and Business, and School of Law. "Individual autonomy as a basis of criminal complicity in New South Wales and Jordan : a comparative study." 2005. http://handle.uws.edu.au:8081/1959.7/25453.
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This dissertation is a comparative study of the law of criminal complicity in Jordan (a civil law jurisdiction), and in New South Wales (NSW) (a common law jurisdiction). It addresses the basis of criminal culpability of individuals, and explores the extent to which the basis of such culpability rests on the autonomy and autonomous actions (or inactions) of individuals. Ideas of such autonomy have been integral to western ethical, political and legal thinking since the seventeenth century. The analysis in this dissertation raises issues where the criminal law does not adequately take into account the limits on individual autonomy in relation to liberty of action, freedom of choice and effective deliberation. These issues highlight that a more serious and deeper understanding of individual autonomy as a ground of culpability must be taken into account by law-makers, to ensure that the grounds of criminal culpability more adequately reflect the limits on people’s individual autonomy in modern society today.Doctor of Philosophy (PhD)
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Huneberg, Samantha. "A critical comparison between how the rights of employees are affected by winding-up and business rescue proceedings." Thesis, 2015. http://hdl.handle.net/10210/15099.
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LL.M. (Commercial law)This dissertation seeks to explore the fundamental differences between the rights of employees in terms of windiqg-up procedures and that of business rescue proceedings. I will be specifically looking at each procedure, winding-up and business rescue proceedings, and the effect that each of these procedures have on the rights of employees. In terms of the analysis of the procedures, I will be looking at the history of both insolvency law and labour law, as well as a look at the old Companies Act of 1973 and specifically at judicial management. By looking at the history we can gain an outlook on the problems we encountered then and how they can be improved today. I will then move on to look specifically at the specific proceedings of winding-up in Chapter 14 of the old 1973 Act and Chapter 6 of the new 2008 for the provisions on business rescue. Through analysing the proceedings I will also look at the legal position in other jurisdictions on the specific matter into account. Specifically I will look to the UK and Australia. Additionally, I will be looking at the International Labour Organisations position on employees' rights in terms of insolvency law. The specific rights of employees that I will be considering are employees rights to commence proceedings, their right to be informed, their right to be consulted, the effect on their employment contracts, retrenchments, claims which they may have against the company as well as the specific rights of employees in the case of a transfer of the business. In analysing all of the above aspects, I will come to conclude from my findings that the rights afforded to employees under business rescue and Chapter 6 of the 2008 Act are extremely beneficial to the employees and are so extensive that they cover almost all rights of employees. In comparison with the rights afforded to employees' in terms of winding-up procedures under Chapter 14 of the 1973 Act these rights are stiII beneficial to employees but they are not as extensive. Both procedures afford employees a significant amount of protection.
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Joyce, Henry David. "'Fairness of outcome' in the mediation of industrial disputes." 2002. http://arrow.unisa.edu.au:8081/1959.8/24997.
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Mediation, as a prominent 'alternative dispute resolution' (ADR) process, has been spreading across various legal jurisdictions in Australia and overseas. Because both the process and the outcome are seen to be 'owned' by the disputants, it has been assessed by Australian governments as being appropriate to the decentralised industrial relations systems developed in the 1990's. This led to proposals to create independent mediation services that would supplement the conciliation-arbitration service available in the Federal and South Australian industrial relation commissions. This study canvassed these proposals in light of the various benefits claimed for mediation and explored the confused usage of the terms mediation and conciliation in relation to industrial disputes. The specific focus, however, was to examine the possible effect of the imbalance of power inherent in the employer-employee relationship upon the fairness of outcome from mediation - and how the method of paying the mediator might impact upon this fairness.thesis (MConflictManagement)--University of South Australia, 2002.
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Carrim, Nazia. "Divorce benefits to non-member spouse under section 37D of the pension funds act 24 of 1956." Thesis, 2013. http://hdl.handle.net/10386/1040.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013This mini dissertation relates to the payment of divorce benefits to a former spouse upon divorce and recent amendments that have taken place in the Pension Funds Act 24 of 1956.Particular reference is made to the amendment of Section 37D.This amendment has brought about changes that will contribute positively to the development of South African Retirement Law. The discussion below deals with the unfairness to non-member former spouses before 1st November 2008. An analysis of pension interest taking into account relevant statutory provisions and case law will be dealt with as well. A classification between a member spouse and a former spouse in order to determine who is responsible to pay tax upon divorce. In terms of the Divorce Act 70 of 1979 the former spouse of a retirement fund on divorce could be awarded by the court a portion of the benefits that the member would have received had she/he resigned on the date of divorce. The former spouse was only entitled to receive that share when the member became entitled to a benefit in terms of the rules of the fund which states on his/her retirement or termination of membership which could have been many years after the date of the divorce. Dissolution of Customary marriages will also be discussed and the benefit a divorced spouse has at the dissolution of marriage.
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Welsh, Shirley Anne Vera. "The law giveth and the law taketh away : Marriages out of community of property excluding accrual post 1984/88." 2000. http://hdl.handle.net/10500/16460.
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Because women are predominantly responsible for childcare, men are the primary income
earners. Having acquired the marital assets, on divorce the husband would retain them in a
marriage out of community of property. The wife would be left deskilled, financially
dependent, with little likelihood of receiving spousal maintenance and with no marital assets.
In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment
Act introduced a judicial discretion to equitably redistribute marital assets in certain
marriages out of community. This dissertation argues that the bases for the limitation of the
judicial discretion to women married before a certain date are unsound and that the limitation
arguably violates the equality clause of the Constitution.Law
LL.M.
20
Burger, Martinus Charl. "Die kliniese sielkundige en die toewysing van kinders in egskeidingsake." Thesis, 2014. http://hdl.handle.net/10210/9335.
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M.A. (Clinical Psychology)The primary aim of this study is to investigate the different subsystems involved in a child custody case. By identifying the various patterns of interaction within each subsystem this work attempts to provide the clinical psychologist with a condensed frame of reference for the role of expert witness in cases of this nature. The study focuses therefore on the legal system in South Africa, the family system in the process of divorce as well as models of assessment used by practicing psychologists when giving expert testimony. In investigating the legal system, the study starts off by highlighting the premises from which the law derives its findings - in both constituted laws and judicial precedents. The best interests of the child as overriding standard is traced through various laws and judicial findings. The study then turns to the latest developments following the promulgation of the Mediation in Certain Divorce Matters Act no 24 of 1987. The hesitancy and doubts that prevail among practitioners of the law concerning this Act are noted. the study initially looks at divorce, then moves on to the the children subsystem.
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Singer, Jill Hilary. "The clean break principle." 1996. http://hdl.handle.net/10500/16039.
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This short dissertation briefly examines the English law statutory provisions and the English judicial approach relating to the clean break principle. A comparison between English law and South African law (in particular s 7 of the Divorce Act 70 of 1979) shows the latter to allow the application of the clean break principle, but rigidity in the legislative wording and further rigidity in the wording by the
courts result in the clean break principle not being a dominant feature of South African divorce law. A detailed analysis of South African case law follows in which the fundamental issues relative to the clean break principle are examined, namely the one third
rule, universal partnership, misconduct and its effect on court orders, the nature of a contribution and what property is distributed on divorce. Trends in maintenance orders are looked at and how these affect the clean break principle, in particular rehabilitative
maintenance and token maintenance wards.Law
LL.M.
22
Lowndes, Gillian Claire. "The need for a flexible and discretionary system of marital property distribution in the South African law of divorce." Diss., 2014. http://hdl.handle.net/10500/18819.
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Substantive gender equality has yet to be achieved in South Africa. As such, when a decision is made for one of the spouses to a civil marriage to stay at home and care for the children born of the marriage, or make career sacrifices to care for children, that spouse is usually the wife. As a result, while the husband continues to amass wealth and grow his earning potential, the wife is unable to do so. In circumstances where such spouses are married out of community of property or subject to the accrual system with onerous exclusion clauses in the antenuptial contract, the wife may be left with little more than a claim for rehabilitative maintenance in the event of a divorce. The courts only have the discretion to make an equitable distribution of marital property in civil marriages with complete separation of property concluded prior to 1 November 1984 (or 2 December 1988) and customary marriages. It is arguable that this limitation of the judicial discretion violates the equality clause contained in the Constitution of the Republic of South Africa, 1996. A broad judicial discretion to equitably redistribute the spouses’ assets upon divorce is therefore proposed in this dissertation.Private Law
LL.M.
23
Ssennyonjo, Peter. "A comparative study of tax incentives for small businesses in South Africa, Australia, India and the United Kingdom." Diss., 2019. http://hdl.handle.net/10500/25981.
Full textAbstract:
This study discusses South Africa’s tax incentives for small businesses and identifies
shortcomings and areas of concern within the tax incentive regimes. A comparison of
small business tax incentives provided by Australia, India, and the United Kingdom is
made with South Africa’s small business tax incentives to identify similarities and
differences, and new lessons are learned from the approaches of other countries. As a
result of the comparison with the tax dispensations available to small businesses in
other countries, the study recommends additional tax incentives that could be
implemented by South Africa. Only those tax incentives that are available in other
countries but not in South Africa that were deemed worthwhile were recommended to
be introduced in the Republic. Recommendations were also made based on the gaps
identified in South Africa’s small business tax incentives.Taxation
M. Phil. (Accounting Sciences)
24
Joubert, Engela Petronella. "A comparative study of the effects of liquidation or business rescue proceedings on the rights of the employees of a company." Thesis, 2018. http://hdl.handle.net/10500/25092.
Full textAbstract:
Whenever legal disciplines overlap interesting scenarios occur and differences in opinions create intellectual tension. One such interesting scenario occurs when employees’ rights are affected during a company’s liquidation or business rescue. The employees of a company are normally the last persons to find out that a company is struggling financially. They are also the only stakeholders who are in no position to negotiate their risk should the company be liquidated. It is therefore necessary to evaluate the rights given to employees during a company’s liquidation and business rescue. The fundamental ideologies of company law, insolvency law and labour law are challenged and examined to attempt a harmonizing result that respects the core of each discipline. It is crucial to determine whether an appropriate balance is struck between the interests of all the stakeholders of the company during these procedures.
The aim of this thesis is to evaluate whether South Africa manages to strike this balance. If employee rights are protected whilst a company is restructured back to solvency and success, this balance will be struck. An evaluation will also be made whether employees are always better protected during business rescue than in liquidation.
The study analyses employee rights in a company’s liquidation and during a company’s restructuring process. The comparative study of employee rights in liquidation and rescue is done with the jurisdictions of Australia and England – countries with similar procedures.
Important conclusions show that South Africa protects employee rights during business rescue procedures the best. An appropriate balance is indeed struck between the interests of all stakeholders of a company during business rescue procedures and employees are most of the time better off after a restructuring than in a liquidation. Should the recommendations for law reform be implemented in our legislation, South Africa will overcome the few obstacles currently in its way to be seen as a world leader where employee rights are concerned in liquidation proceedings as well as business rescue.Mercantile Law
LL. D.
25
Myers, Alexandra Ann. "Single parent families after divorce : a discussion of the causes and possible legal solutions to the 'feminisation of poverty'." 1999. http://hdl.handle.net/10500/17551.
Full textAbstract:
In recent times, the incidence of single-parent families has increased rapidly with the
principle cause being the rising divorce rate. The vast majority of these single-parent
families are headed by women and a predominantly common factor in these
households is the extent to which they are financially impoverished after divorce. This
situation has given rise to the phenomenon known as the feminisation of poverty,
where women are seen to make up the majority of the poor. This study examines the
many varied factors contributing to this phenomenon and discusses some of the
general solutions offered world-wide to address these poverty-stricken households.
An assessment is then made of those legal solutions most appropriate for South AfricaLaw
LL.M.
26
Jansen, van Vuuren Johanna Petronella. "A legal comparison between South African, Canadian and Australian workmen's compensation law." Diss., 2013. http://hdl.handle.net/10500/18551.
Full textAbstract:
Workers’ compensation originated internationally because of the need to address
the plight of workers and communities left destitute due to occupationally sustained
disabilities or death. This study examines how the right to no-fault compensation
developed in South Africa in comparison to the comparable law in Canada and
Australia. Specific limitations regarding the right to workers' compensation
pursuant to the South African compensatory laws were identified. Limitations
identified include the persons falling within the ambit of the law, circumstances
creating a right to compensation, the right to claims for increased compensation
uniquely provided for in South African compensatory law and founded in the
negligent conduct of employers as well as common law redress for damages. The
background of the administrative remedy in the form of the right to compensation
for occupational injuries and diseases ought to be seen in the light of the
Constitution of the Republic of South Africa 1996.Mercantile Law
LL.M.
27
De, Jong Madelene 1963. "Egskeidingsbemiddeling in Suid-Afrika : 'n vergelykende studie." Thesis, 2002. http://hdl.handle.net/10500/1524.
Full textAbstract:
Text in Afrikaans with summaries in Afrikaans and EnglishFor many years divorce has been viewed exclusively as a legal problem that had to be addressed by the courts in our adversarial system of litigation. Divorce, however, also entails social problems which are not addressed in our legal system. It appears further that our adversarial legal system tends to heighten the conflicting interests of individual family members at divorce and to encourage animosity and irreconcilability. In an attempt to ameliorate the harsh consequences of the adversarial legal system at divorce, two no-fault grounds for divorce were introduced to enable divorcing spouses to make the decision about the termination of their marriage themselves. This greater freedom that no-fault divorce afforded parties quickly led to a demand for a new system of dispute resolution at divorce. The Hoexter Commission consequently, recommended the establishment of a family court with a social component where mediation services are offered. In both Australia and New Zealand the introduction of no-fault divorce was attended by the establishment of family courts where mediation services are offered. In mediation the parties involved, with the assistance of an impartial third, may sort out and find solutions to all their divorce-related problems. It also appears that mediation has always played a prominent role in the resolution of family disputes in the indigenous communities of South Africa. Owing to financial restrictions, South Africa is still without a family court. So far, only the Mediation in Certain Divorce Matters Act 24 of 1987 has emanated from the recommendations of the Hoexter Commission. This Act, which provides for the institution of enquiries by the office of the family advocate to determine the best interests of children at divorce, professes in its title to have introduced mediation as an alternative system of dispute resolution at divorce. From the contents of the Act it is apparent, however, that it provides for mediation only in a very limited sense. Consequently, it is necessary to amend this Act to make provision for real, comprehensive and accessible mediation services for the public in all family law disputes. This amendment could best be achieved by regulating existing private and community mediation services and integrating them into the formal legal process.
Egskeiding is baie jare lank as 'n regsprobleem beskou wat in ons adversatiewe stelsel van litigasie uitsluitlik deur die howe uitgestryk moes word. Egskeiding behels egter ook maatskaplike probleme wat nie deur ens regstelsel ondervang word nie. Ons adversatiewe regstelsel verskerp boonop die teenstrydige belange van individuele gesinslede by egskeiding en moedig verbittering en onversoenlikheid aan. Weens die probleme wat die skuldbeginsel en die adversatiewe stelsel vir gades met huweliksprobleme en vir die egskeidingsproses in die algemeen veroorsaak het, is twee skuldlose egskeidingsgronde in 1979 ingevoer wat aan gades wat wil skei, groter inspraak en seggenskap in die hele proses gegee het. Hierdie groter vryheid wat skuldlose egskeiding meegebring het, het spoedig 'n behoefte aan 'n nuwe stelsel van dispuutbeslegting by egskeiding geskep. Die Hoexterkommissie het gevolglik aanbeveel dat 'n gesinshof met 'n maatskaplike komponent ingestel word waarby onder andere bemiddelingsdienste beskikbaar meet wees. In sowel Australie as Nieu-Seeland het die invoering van skuldlose egskeiding inderdaad gepaardgegaan met die instelling van gesinshowe waar bemiddelingsdienste beskikbaar is. In die bemiddelingsproses kan mense self, maar met die bystand van 'n onpartydige derde, al hulle probleme by egskeiding uitsorteer en oplos. Dit blyk verder dat bemiddeling nog altyd 'n prominente rol by die beslegting van gesinsgeskille in inheemsregtelike gemeenskappe in Suid-Afrika gespeel het. Weens finansiele beperkings is Suid-Afrika nog steeds sonder 'n gesinshof. Al wat tot dusver uit die Hoexterkommissie se aanbevelings voortgevloei het, is die Wet op Bemiddeling in Sekere Egskeidingsaangeleenthede 24 van 1987 wat daarvoor voorsiening maak dat die kantoor van die gesinsadvokaat by egskeiding ondersoeke na die beste belange van kinders kan instel. Alhoewel die titel van die Wet voorgee om vir bemiddeling as 'n alternatiewe stelsel van dispuutbeslegting by egskeidng voorsiening te maak, blyk dit uit die inhoud van die Wet dat dit bloot vir 'n baie beperkte vorm van bemiddeling voorsiening maak. Dit is gevolglik nodig dat hierdie Wet gewysig word om by alle familieregtelike kwessies vir ware, omvattende en toeganklike bemiddelingsdienste aan die publiek voorsiening te maak. Die geskikste wyse waarop dit bewerkstellig kan word, is om bestaande private en gemeenskapsbemiddelingsdienste te reguleer en in die formele regsproses te integreer.
Private Law
LL.D.
28
Engelbrecht, Ockert Michiel. "Die finansiële posisie van gades na egskeiding met spesifieke verwysing na die clean break -beginsel." Diss., 2001. http://hdl.handle.net/10500/16752.
Full textAbstract:
Text in Afrikaans, abstract in Afrikaans and EnglishHierdie studie handel oor die ontwikkeling van die "clean break"-beginsel met verwysing na die posisie daarvan in vergelykbare regstelsels. Dit toon aan hoedat maatskaplike omstandighede die samelewing se siening van die huwelik be"invloed het. Die hedendaagse samelewing is ten gunste van 'n "clean break" na egskeiding, sonder 'n voortdurende onderhoudsverpligting. Hierdie neiging beinvloed die finansiele posisie · van gades na egskeiding nadelig. Dit is 'n feit wat ook in regskringe al hoe meer erkenning geniet en daartoe aanleiding gegee het dat voortdurend gedebatteer word oor wyses waarop die finansiele posisie van vroue na egskeiding verbeter kan word. Daar word tot die gevolgtrekking gekom dat die siening van substansiele gelykheid 'n invloed behoort te he op die finansiele posisie van gades na egskeiding. Gesien teen die agtergrond van die fundamentele menseregte handves is 'n bemoeienis van regswee inderdaad geregverdig.
This study traces the development of the "clean break" principle as it has developed in comparable legal systems. It shows that changed socio-economic conditions influenced society's view of marriage. Modern society tends to follow a "clean break" after divorce, with no continuing maintenance obligations. This trend tends to influence the financial position of single parent families after divorce negatively. This fact has been recognised in legal circles and has led to a continuing debate on ways to improve the financial position of women after divorce. My study concludes that substantial equality as seen from a fundamental human rights position point of view, justifies legal involvement with regard to the financial position of spouses after divorce.
Private Law
LL. M.
29
Rammutla, Chuene William Thabisha. "The "official" version of customary law vis-a-vis the "living" Hananwa family law." Thesis, 2013. http://hdl.handle.net/10500/10614.
Full textAbstract:
The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal.
Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him.
However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes.
The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law.Public, Constitutional, & International Law
LLD (International and Constitutional Law)
30
Kirby, Ronald Vernon. "A comparative study of the enforcement of environmental law with regard to the conservation of fauna and flora in the RSA." 2002. http://hdl.handle.net/10500/17092.
Full text
31
London, Ray William. "Comparative data protection and security : a critical evaluation of legal standards." Thesis, 2013. http://hdl.handle.net/10500/13859.
Full textAbstract:
This study1 addresses the key information technology issues of the age and
its unintended consequences. The issues include social control by
businesses, governments, and information age Star Chambers. The study
focuses on a comparative analysis of data protection, data security, and
information privacy (DPSIP) laws, regulations, and practices in five countries.
The countries include Australia, Canada, South Africa, the United Kingdom,
and the United States. The study addresses relevant international legal
standards and justifications. This multidisciplinary analysis includes a
systems thinking approach from a legal, business, governmental, policy,
political theory, psychosocial, and psychological perspective. The study
implements a comparative law and sociolegal research strategy. Historic,
linguistic, and statistical strategies are applied. The study concludes with a
next step proposal, based on the research, for the international community,
the five countries in the study, and specifically, South Africa as it has yet to
enact a sound DPSIP approach.LL. D.
32
London, R. W. "Comparative data protection and security : a critical evealuation of legal standards." Thesis, 2013. http://hdl.handle.net/10500/13859.
Full textAbstract:
This study1 addresses the key information technology issues of the age and
its unintended consequences. The issues include social control by
businesses, governments, and information age Star Chambers. The study
focuses on a comparative analysis of data protection, data security, and
information privacy (DPSIP) laws, regulations, and practices in five countries.
The countries include Australia, Canada, South Africa, the United Kingdom,
and the United States. The study addresses relevant international legal
standards and justifications. This multidisciplinary analysis includes a
systems thinking approach from a legal, business, governmental, policy,
political theory, psychosocial, and psychological perspective. The study
implements a comparative law and sociolegal research strategy. Historic,
linguistic, and statistical strategies are applied. The study concludes with a
next step proposal, based on the research, for the international community,
the five countries in the study, and specifically, South Africa as it has yet to
enact a sound DPSIP approach.LL.D. (Laws)
33
Lüneburg, Liezel. "Die impak van die MIV/VIGS-pandemie op sekere aspekte van die Suid-Afrikaanse kinderreg." Thesis, 2008. http://hdl.handle.net/10500/2419.
Full textAbstract:
Text in AfrikaansDie MIV/vigs-pandemie in Suid-Afiika- van die ergste in die wereld- toon geen tekens van afname nie. Miljoene kinders is reeds of wees gelaat of hewig geaffekteer deur die magdom impakte daarvan op gesinne en gemeenskappe. Die epidemie het voortdurend stygende sterftesyfers tot gevolg en die hewige las van die siekte rus swaar op MIV-positiewe sowel as MIV-negatiewe individue. Verder word tradisionele ondersteuningsnetwerke oorbelaai en/of gaan hulle tot niet. Gesinne en gemeenskappe verloor hul ekonomiese, sosiale en kulturele lewensvatbaarheid. Die pandemie hou, veral onder die armes, 'n geweldige bedreiging vir die gesondheid, welstand en regte van babas, kinders en jongmense in. 'n Groot gedeelte van die impak van MIV/vigs hou verband met die feit dat sommige kinders en hul gesinne beperkte toegang tot die elemente van 'n gesonde omgewing en goeie gesondheid het. Regerings, gemeenskappe en gesinne wat deur MIV/vigs geraak word, het minder tyd, energie en finansiële hulpbronne beskikbaar om op voorkomende gesondheidsorg te fokus. Benewens die impak op gesondheidstatus, word kinders se omstandighede ook as gevolg van MIV/vigsverwante probleme bemoeilik. Dit sluit verhoogde gesinsarmoede, 'n hoer risiko van verlating en weeslating, geforseerde migrasie, onterwing, sielkundige trauma, uitsluiting en diskriminasie, en fisiese en seksuele mishandeling in. Die derde vlaag van die epidemie, welke vlaag nou betree word, word gekenmerk deur 'n ontsettende hoe sterftesyfer, 'n ontploffing in die getal sorgbehoewende en weeskinders en 'n verhoging in menslike pyn en lyding. Die reg speel 'n baie belangrike rol in die beperking van hierdie impak van die MIV/vigs-pandemie op die lewens van alle kinders. MIV/vigs-reg is in die proses van evolusie of vorming en reeds bestaande teorieë kan aangewend word ten einde sekere vrae te beantwoord en probleme daaromtrent aan te spreek. Tog is daar 'n dringende behoefte aan MIV/vigs-spesifieke wetgewing en teorieë ten einde die impak van die pandemie op alle vlakke suksesvol te beheer. Verder het die Kinderreg so 'n mate van ontwikkeling bereik dat daar algemeen aanvaar word dat kinders 'n spesiale belangegroep binne die gemeenskap vorm. Die regsreëls met betrekking tot kinders verander gedurig en is ook nie geskik om volgens die tradisionele wyse, as privaat- of publiekreg, geklassifiseer te word nie. In die hieropvolgende proefskrif word die impak van MIV/vigs op sekere publiekregtelike, maar oorwegend privaatregtelike aspekte van die Suid-Afiikaanse kinderreg ondersoek, sowel as enkele metodes waarop die reg moontlik hierdie impak kan absorbeer en hanteer. Daar word ook in aparte hoofstukke na die impak van MIV/vigs op die lewens van kinders. sorgbehoewende kinders, egskeiding en die ouer-kind-verhouding verwys The HIV/aids pandemic in South Africa - one of the worst in the world - does not seem to be decreasing. Millions of children have already been either orphaned or heavily affected by the numerous impacts on families and communities associated with it. The epidemic brings on an ever-increasing mortality rate and the extreme burden thereof weighs down heavily on HIV-positive as well as HIV-negative individuals. Traditional support networks are further being heavily burdened or perish entirely. Families and communities lose their economical, social and cultural viability. The pandemic threatens, especially among the poorest, the health, wellbeing and rights of infants, children and young people. The impact of HIV/aids is to a great extent the result of the fact that some children and their families do not have sufficient access to a healthy environment and good health. Governments, communities and families affected by HIV/aids have less time, energy and financial resources available in order to enable them to focus on preventive healthcare. In addition to the impact on health status, children's circumstances are also being encumbered by HIV/aids-related problems, including family poverty, a higher risk of being abandoned or orphaned, forced migration, disinheritance, psychological trauma, ostracism and discrimination and physical and sexual abuse. The third wave of the epidemic, which wave is presently being experienced, is characterised by a high mortality rate, an increasing amount of children in need of care and orphaned children and an increase in human pain and suffering. The law plays an important role in the limitation of the impact of the HIV/aids pandemic on the lives of children. HIV/aids law is in the process of evolution or forming and existing theories can be used in order to answer certain questions and address certain issues relating to it. However, there is an urgent need for HIV/aids-specific legislation and theories in order to successfully manage the impact of the pandemic on all levels. Child law has also reached such an extent of development that children is now viewed as a special interest group within the community. The legal principles regarding children change constantly and cannot be classified in the traditional way, which is either as private or public law. In this thesis the impact of HIV/aids on certain aspects of the public and private law pertaining to children is examined. Ways in which the impact can be absorbed and managed by the law is also examined. The impact of HIV/aids on divorce, the parent-child relationship, children in need of care, and the impact of HIV/aids on the lives of children is examined in separate chapters.
Jurisprudence
LL. D.