Theses and Dissertations (Procedural Law)

Permanent URI for this collectionhttp://hdl.handle.net/2263/32292

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A re-evaluation of the special investigating unit and special tribunal in South Africa
(University of Pretoria, 2018-02) Baboolal-Frank, Rashri; Ndunyana, Luvuyo
The main focus of this dissertation is to critically evaluate the functioning of the Special Investigating Unit ('SIU') and Special Tribunal in the execution of its mandate, which includes the fight against fraud and corruption on state institutions in South Africa. The dissertation seeks to explore the importance of a functional SIU and Special Tribunal in the eradication of maladministration, fraud and corruption on state institutions in terms of the Special Investigation Units and Special Tribunals Act 74 of 1996 ('the SIU Act'). The questions investigated by this dissertation is whether the Special Tribunal established in terms of the SIU Act is designed to perform administrative functions or purely judicial functions; how the SIU institutes civil proceedings on behalf of the state institutions and whether the SIU is completely functional in its present form. The main findings of the dissertation, among others are that the SIU Tribunal is a purely judicial tribunal. However, the SIU performs administrative functions relating to the mandate assigned to the SIU by the President in the proclamation. Furthermore, the SIU and Special Tribunal derive their mandate from the SIU Act and operate within the ambit of the terms of reference in the empowering proclamations. Based on these findings, among others, the dissertation concludes that although the Special Tribunal is presently not composed as is provided for in terms of s 7 of the SIU Act, or functional like the SIU Act envisages, the Special Tribunal is a purely judicial tribunal. This view is based on the fact that the Special Tribunal consists of officers of court ranging from judges; magistrates; advocates or attorneys of the Supreme Court of South Africa. The Special Tribunal may furthermore make any order which it deems appropriate to give effect to its decision. It functions in the same way as a court according to rules made by its President. The Special Tribunal has jurisdiction to adjudicate upon any justiciable civil disputes (arising out of civil proceedings instituted in that Special Tribunal) emanating from the investigations by the SIU. The SIU must have acted within the ambit of its terms of reference as set out in the proclamation referred to ins 2(3) of the SIU Act. The research, finally, finds that in the absence of a fully functional Special Tribunal, the SIU is not fully effective in the manner in which the legislature intended it to be as envisaged by the SIU Act. What was envisaged by the SIU Act was simply a fully functional Special Tribunal. Against this background, the main recommendation of this dissertation, among others, is that the SIU and Special Tribunal should amend their empowering legislation, namely the SIU Act in order to give them more powers for the proper performance of their functions. A fully functional Special Tribunal will provide benefits to the SIU by it being more effective, with improved turnaround times on investigations and civil litigation, and should be outcomes orientated.
Legal counselling in family mediation to address unnecessary litigation
(University of Pretoria, 2023) Baboolal-Frank, Rashri; u28292601@tuks.co.za; Ndebele, Linda Tendesai
This research seeks to explore and evaluate the concept of legal counseling and its impact on dispute resolution processes and outcomes. For purposes of this study, legal counseling refers to specific attitudes, skills and strategies employed by the legal counselor in his or her interaction with clients and opponents in the process of resolving legal problems. This study is premised on the assumption that there is indeed a correlation between these attitudes, skills, strategies and the efficiency of the dispute resolution process. Some legal counselors promote swift and constructive alternative dispute resolution processes while others have the propensity to promote unnecessary and long drawn litigation. In this regard, the alternative dispute resolution mechanism of mediation will be reviewed with particular focus on family law case management in two jurisdictions, being South Africa and Australia. This research will explore the basic elements of effective legal counseling such as the legal counselor`s ability to communicate effectively and manage human emotions, concerns and anxieties to advance effective, efficient and constructive dispute resolution. For purposes of this study, a legal counselor is a lawyer professionally trained to render legal advice and handle legal affairs of clients, and where necessary to appear on behalf of the client in courts and other dispute resolution platforms. The lawyer advises the client by employing the different lawyering models available. Two main legal counseling or lawyering models will be explored in this study, namely, the client autonomy model and the lawyer autonomy model. The lawyering model applied by the legal counselor can facilitate successful alternative dispute resolution or promote unnecessary and long drawn litigation.
An evaluation of alternative dispute resolution in the South African agricultural environment
(University of Pretoria, 2024-04-03) Baboolal-Frank, Rashri; lancasterc@tut.ac.za; Lancaster, Claribel
The objective of this study was firstly to evaluate the current position of ADR within the legislative and policy framework specific to the agricultural industry in South Africa and, thereafter, to recommend ways to improve such framework. It is evident from research that the recognition and advocacy of ADR can better realise the constitutional right of access to justice as a dispute resolution method in the agricultural environment. Research further shows that national legislation and policy are insufficient to address the agricultural supply chain in addressing disputes by ADR. This practice allows for a speedier and more cost-effective dispute resolution. In the strive towards sustainable practices in the agricultural supply chain, the intervention of third-party audits and international business standards provide an ideal opportunity to enforce ADR as an accessible dispute resolution method where power imbalances and access to resources limit less powerful parties to a dispute, in solving the dispute in a fair and effective manner. Considering the current regulatory framework, recommendations to improve the use of ADR in the agricultural environment include the need for more robust research, involvement of DALRRD and state intervention on matters of ADR in agriculture, adding ADR as a preferred method of dispute resolution to industry standards, educating stakeholders in the supply chain on the benefits of using ADR, and more specific legislative changes.
An assessment of mediation as an effective aid for resolving conflict : land disputes
(University of Pretoria, 2023-12-19) Baboolal-Frank, Rashri; U23974827@tuks.co.za; Rakgwale, Mmakgoedi Sylvia
This mini dissertation assesses mediation as a method of resolving land disputes. It provides a comparative analysis of South Africa, Kenya and Rwanda's use of mediation to resolve land conflicts. It consists of 5 chapters with the conclusion findings showing that mediation can be effectively used as an aid to resolve land disputes. It also provides recommendations such as the development of institutional and legal framework to provide for better resolution of land conflicts through mediation.
The viability of the death penalty as an alternative to life imprisonment in South Africa
(University of Pretoria, 2024) Curlewis, Llewelyn Gray; katelynmae.carter@gmail.com; Carter, Katelyn-Mae
Twenty-seven years ago, the death penalty (as it was prescribed in S277 (1)(a) of the Criminal Procedure Act) was declared unconstitutional in S v Makwanyane and Mchunu. Given the socio-political landscape of the time, this decision may have been correct. However, this research questions whether this decision is correct for South Africa presently. In 2019 and 2020 South Africa experienced exponentially high rates of serious and violent crimes which resulted in the public demanding the reintroduction of the death penalty. With the above in mind, this dissertation examines the viability of capital punishment in South Africa if it were to be applied presently. It examines whether it is a punishment that is arbitrary in nature and whether it can be classified as a cruel and inhumane punishment in the face of South African prison conditions. It makes a comparative analysis of how the death penalty is viewed between developed and developing abolitionist and retentionist countries. It also takes cognisance of public opinion towards the death penalty and sentencing as whole in the criminal justice process. Lastly, it examines whether the levels of violence currently in South Africa can be comparable to that experienced during a time of conflict in which Chaskalson J said that the death penalty would be admissible.
An analysis of the Seriti Commission of Inquiry and its shortcomings
(University of Pretoria, 2023) Curlewis, Llewelyn Gray; brianmukoki@gmail.com; Mukoki, Pj-Brian
It has been said that Commissions of inquiry are governmental tools that assist the state in adjudicating disputes; however, is that really the true state of affairs? With their increasing popularity over the years, one would assume it is a mechanism that is without flaws; however, that could not be further away from the truth. Although they may be of benefit to the state, they do have one fatal flaw, they are utilized by Man. This paper focuses on the shortcomings of the Seriti Commission of inquiry and ultimately its failure to fulfill its mandate, to find the truth. It is widely accepted that commissions of inquiry are established with a truth finding mandate however in the Seriti Commission, it appears as if it was established to do the opposite which not only undermined its primary purpose, but also the Constitution and the people of South Africa. It explores how commissions are established and the legislation that governs them. This paper offers a critical analysis of the manner in which the Seriti Commission was conducted. It further explores the inextricable link between the law and morality, interrogating if one can exist without the other. It concludes with recommendations that are specifically aimed at ensuring commissions are not abused and used for nefarious purposes, purposes that do not benefit the people of South Africa.
Reforming the right to bail for illegal/undocumented foreigners in South Africa
(University of Pretoria, 2023) Curlewis, Llewelyn Gray; Mujuzi, Jamil Ddamulira; Lethabomoepya@gmail.com; Moepya, Lethabo
This study revisits the law governing the release on bail of accused persons that are without relevant documentation to be in the Republic of South Africa. The study specifically analyses the outcomes of the cases in which illegal foreigners appeared before the South African courts in order to establish what the case law is with regard to the release of illegal foreigners on bail. The study goes further to look at the bail laws of a few other jurisdictions around the world in as far as their bail laws regarding illegal foreigners are concerned.
An evaluation of the CCMA with the aim of enhancement and improvement
(University of Pretoria, 2023) Baboolal-Frank, Rashri; williamsonchane19@gmail.com; Williamson, Chané
The Labour Relations Act established the Commission for Conciliation, Mediation and Arbitration (CCMA) as a statutory institution for labour dispute resolution. This dissertation draws on CCMA data and case analysis to provide a comprehensive analysis of the CCMA’s role in resolving labour disputes. The CCMA was created with the intention of providing inexpensive, accessible and effective dispute resolution through conciliation and arbitration. Although there is no specific mandate in relation to lessening poverty, reducing unemployment and inequality, the CCMA still plays an active role in the reduction of these socio-economic issues. This dissertation highlights the CCMA’s efforts to provide marginalized populations with a framework for equal access to justice, emphasizing its role in expanding access to justice. The research highlights the CCMA’s ability to grant awards for Basic Conditions of Employment Act and National Minimum Wage Act referrals and the role this plays in combating non-compliance with the national minimum wage, to continue the fight against poverty and inequality. The CCMA combats unemployment through its job-saving strategy that ensures all prospective job-saving measures are considered as soon as possible to prevent as many layoffs as possible. Despite the difficulties presented, the CCMA persists in attempting to contribute to the labour market in a meaningful way. The CCMA’s ability to resolve disputes within the stipulated timeframes and maintain a high settlement rate year after year contributes to the effectiveness of the institution. The costs involved in these proceedings in comparison to that of litigation contributes to the accessibility of the CCMA, this is further highlighted by the continuous increase in the case referrals annually. This positively contributes to the CCMA’s effectiveness. The research findings of this dissertation indicates that non-compliance with court orders ultimately undermine the effectiveness and efficiency of the CCMA. Furthermore, the elucidations of this research indicate a need for an accurate representation of the user experience and satisfaction in the form of quantitative data such as sample questionnaires, to ensure that the quality of dispute resolution is preserved. This potential quantitative data will provide the CCMA with the opportunity to evaluate its performance and assist the CCMA in providing effective dispute resolution.
Societal change through sports
(University of Pretoria, 2023) Cloete, Rian; keanuluttig@gmail.com; Luttig, Keanu M.
This dissertation aims to address the concerns that sport and society have in common, where the relevant governing legislation has fallen short and analyses whether the sports industry, and its athletes coupled with the appropriate judicial remedy can utilise their collective influence to help make a change for the better.
The legality and regulation of professional mixed martial arts in South Africa
(University of Pretoria, 2023) Cloete, Rian; u20798203@tuks.co.za; Ramsden, Gerald Andrew
Senator John McCain was not far off the mark when he described mixed martial arts (MMA) as “human cock-fighting”, during its formative years in the United States of America (US) in the early 1990’s. Those early MMA contests were no-holds-barred brutal affairs, fought between bloodied combatants of all shapes, sizes and combat styles, in a metal cage, spurred on to heightened levels of violence by a blood-thirsty crowd. Like bare-knuckle prize-fighting during the 18th and 19th centuries, this new form of combat sport closely resembled a glorified street-fight, which left the combatants battered and bruised, often with serious bodily injuries. The sheer brutality of these spectacles ultimately led to the banning of MMA across the US. Realising that MMA’s future depended on governmental sanction and regulation, its organisers embarked on a new strategy that sought out governmental sanction and regulation. Although MMA is now legal in all US states and currently thrives as a well-regulated mainstream sport in the US, its regulation in both the United Kingdom (UK) and South Africa has lagged behind, raising uncertainty about its legality in these two jurisdictions. This uncertainty has been aggravated by the absence of legislative intervention and judicial scrutiny in respect of MMA generally, both in the UK and South Africa. Further, there is a dearth of academic literature to address this current legal lacuna. This study endeavours to bridge that legal lacuna by examining the legality of MMA in South Africa. In so doing, guidance is sought from the historical legal journey that MMA has taken in the US and also from the manner in which the English courts have approached boxing and other activities that entail consensual harm, such as sado-masochism. The pursuit of an answer to the aforesaid enquiry requires one to traverse a wide range of different, but related legal principles and concepts, both in South African law and (by comparison) the laws of the comparative jurisdictions, namely the UK, New York (NYS) and Nevada; making the legal journey of discovery both challenging and rewarding. In addition, the study also examines how best to regulate MMA in South Africa having regard to the outcome of the earlier enquiry regarding its legality in South Africa, and by taking guidance from the tried and tested regulatory models used to regulate MMA in NYS and Nevada, two of the epicentres of modern-day MMA.
The effect of unlawfully obtained evidence on the administration of justice
(University of Pretoria, 2022) Gravette, Willem; aramatshimbila@gmail.com; Ramatshimbila, Azwifarwi
This mini-dissertation focuses on the true extent of the meaning and effect of unlawfully obtained evidence. The focus is on the unlawfully obtained evidence from the perspective of the rule of law and not necessarily the conflict with the provisions of the Constitution of the Republic of South Africa, 1996 (Constitution). It is assumed that interference with the rule of law is more likely to lead to interference
A review of the enforcement of arbitration awards ; a comparative study of Nigeria and South Africa
(University of Pretoria, 2022) Baboolal-Frank, Rashri; none; Makinde, Okadazim Niella
Arbitration, as one of the alternative dispute resolution procedures, aids in the quick resolution of disputes as against traditional litigation. The Courts' apparent lack of promptness in dispensing disputes necessitates the employment of arbitration in international and sometimes national businesses. The main purpose of parties in any dispute (particularly arbitration) is for the arbitrator's ruling to put an end to the dispute that has arisen between them. The purpose and logical conclusion of the arbitration process is the arbitral award. The award's concept must be obvious and unambiguous so that when it is issued, the winning party has no problem recognizing and enforcing it. This study examines the current legal regime for recognising and enforcing arbitration awards in Nigeria and South Africa. It will also address the review of the enforcement of arbitral awards (both domestic and international), considering the issues and challenges that have arisen. The underlying policy considerations of each country in their quest to join the comity of nations in guaranteeing prompt enforcement of arbitral awards, as well as efforts to reform the primary legislation governing arbitration awards in both countries, will also be reviewed in this study. Even though there have been several suggestions, efforts, and recommendations for reforming the laws and legislations governing arbitration, recognition, and enforcement of arbitral awards, this research will also provide a general analysis of regulatory deficiencies in the enforcement of arbitral awards. I will make recommendations for legal and judicial approaches that Nigeria and South Africa can adopt.
Private prosecutions in South Africa
(University of Pretoria, 2022) Curlewis, Llewelyn Gray; wian.spies@gmail.com; Spies, Willem Durand
This thesis will examine the question whether private prosecutions in South Africa could be of assistance to the National Prosecution Authority in fulfilling its constitutional mandate in the current post-Apartheid era of South African judicial transformation. It will further explore the possible effect of private prosecution on the prevailing ‘criminal culture’ in South Africa. The question as to whether, and if so to what extent, the promotion of private prosecutions could possibly bring about a decrease in the incidence of crime will be investigated. Well-founded arguments in favour of and against the promotion of private prosecutions will also be considered. The discussion will take place with due regard to the fact that any proposed change to the judicial system pertaining to private prosecution in South Africa should only be favoured if its positive impact on society will clearly outstrip any possible minor negative features. In order to make the best determination as to the possible effect of a new system favouring a substantial increase in the number of private prosecutions in South Africa, the history and development of private prosecutions in South Africa will be discussed and evaluated.
Discovery of electronic information in legal proceedings in South Africa with specific reference to Rule 23 of the Magistrates’ Court Rules and Rule 35 of the Uniform Rules of Court
(University of Pretoria, 2022) Gravett, Willem; hartattorneys@gmail.com; Hart, Elton Romeo
The exponential growth in electronically generated and -stored information in legal proceedings raises the question of whether electronic information falls within the ambit of the traditional definition of the term “document”. The current definition of the term “document” in the CPA and CPEA restricts the admission of electronic information as evidence in legal proceedings. The current court rules should be amended, and a broader definition of the term “document” should be included in the court rules. The ECTA was promulgated to address the shortcomings of our current legislative framework to ensure that electronic information that is admissible and relevant evidence is not excluded as evidence in legal proceedings. Retention and preservation of electronic information as evidence is part of modern litigation globally. The ECTA provides for the admissibility of electronic information as evidence but is silent on the procedural rules and requirements to avoid lackluster preservation and retention of electronic information that may be discovered and used as evidence in legal proceedings. This loophole in our legislative framework must be addressed to avoid non-compliance with the court rules. In South Africa, it seems that relevant evidence, in the form of electronic information and its associated metadata, can easily be destroyed before proceedings are instituted if a requesting party fails to obtain an Anton Pillar order against a responding party. This calls for legislative reform in South Africa in this digital age.
A critique of alternative dispute resolution in Africa
(University of Pretoria, 2021) Baboolal–Frank, Rashri; khanyi.communique@gmail.com; Mgwenyana, Khanyisa
Alternative Dispute Resolution (ADR), has with time, become a preferred manner of conflict resolution in most countries around the world and has gained great popularity, particularly in Africa, home to over one billion people. Through modernly accepted dispute resolution practices, disputants are allowed the flexibility of navigating through their conflict by participating in the procedure and the outcome of the process, unlike the traditional formal legal route. Voluntariness is an inherent characteristic of the process to resolve the dispute, not only to the disputants but even the neutral third party. ADR has achieved great success, and the key to its success is the flexibility afforded to the parties to decide on procedural aspects of the process. The African continent is also no stranger to the underpinning values and origins of the ADR system. Its indigenous people had practised this form of conflict resolution long before the western culture formalised it. This knowledge and sense of belief of its traditions, norms and customs was adapted by the African people into the modern-day application of ADR. Integrating ADR into its legal systems will positively affect its people because it makes justice accessible and affordable. Therefore, ADR becomes an all-encompassing solution for Africa. It can be utilised at all levels of society in resolving less serious conflicts, lessening the burden of caseload into the formal justice system. In several pilot projects, Africa has attempted such implementations successfully and should continue this innovation. The dissertation deconstructs the complexities of ADR mechanisms in Africa.
The legal liability of the various role players in professional boxing for an injury or death suffered by a boxer during a professional boxing bout held in South Africa
(University of Pretoria, 2021) Cloete, Rian; gerald@ramsdenlaw.co.za; Ramsden, Gerald Andrew
In a sport like professional boxing where the infliction of bodily harm on one’s opponent is the primary objective of both the participants, it is therefore not surprising that the risk of serious bodily injury (and even death) is omnipresent within the square ring that these modern-day gladiators ply their fistic trade. At the same time, those who control, organise and officiate these contests, as well as those who prepare the combatants for battle, often do so oblivious of the daunting legal risks that stalk them whilst they do so. This research study explores these legal risks in the context of the applicable laws and the respective roles performed by each of these role players. Whilst the research study has a South African focus, it also briefly examines the corresponding laws in the State of New York and the United Kingdom, with a view to using same as a comparative basis for making recommendations on how these legal risks can be averted and/or mitigated in South Africa. Although this research study reveals that few of these role players escape the net of potential liability posed by these legal risks, the recommendations that are made in this research study should hopefully provide some comfort to them, if those recommendations were to be adopted and implemented.
Reconsidering a community-based judicial system for South African courts based on the common law jury system
(University of Pretoria, 2019) Gravett, Willem; Werner, Anandi
The Oscar Pistorius Trial awakened everyday citizens to the reality of what transpires in South African courtrooms on a daily basis; thereby stirring them from their slumber created by the absence of engagement and involvement in South Africa’s judicial system and the administration of justice as a whole; and propelling them into an environment which invites and facilitates engagement and debate on the functioning and judgments of South African courts. Since the abolition of the jury system in South Africa in 1969, lay participation in South Africa’s formal judicial system and more broadly in the administration of justice, has been practically non-existent save for instances where a lay person is called as a witness, expert witness or as an assessor in a trial. This lack of public participation in the administration of justice results in multiple concerns relating to legitimacy and the public’s disconnect from judicial processes and procedures. In order to address the growing need for public participation in the administration of justice, options of a judicial system providing for such involvement must be considered. This study contemplates whether a community-based judicial system is a viable consideration for South African courts, and explores options whereby South Africa’s judiciary can make a shift to a system which encourages and facilitates lay participation by drawing from the common law jury system and its functions; which are underpinned by the direct involvement of the community. Furthermore, the study assesses whether links can be drawn between the common law jury system (Western approach) and traditional (indigenous) justice and conflict resolution processes (African approach) in respect of community participation in the administration of justice.
Critical analysis of how the South African criminal law addresses cybercbullying
(University of Pretoria, 2019) Curleswis, Llewyn; amachitela@npa.gov.za; Machitela, Malesela Abram
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.
A possible amendment to the criminal procedure and evidence act, 1939 of the republic of Botswana with regard to plea and sentence agreements in an effort to promote the expeditious and efficient disposition of criminal matters
(University of Pretoria, 2019) Curlewis, Llewelyn Gray; lameckkgosieile@gmail.com; Kgosieile, Lameck
Plea-bargaining and sentencing agreement is a worldwide phenomenon. Most of the jurisdictions more particularly in the so-called developed countries have adopted and incorporated into their criminal justice system the concept of plea-bargaining and sentence agreement. Same has properly been legislated and documented. In the United States for example, more than 80 per cent of the criminal matters are disposed of through plea-bargaining between the prosecution authority and the defendants. This system of disposing of criminal matters through plea-bargaining and sentence agreement has saved states resources and saved courts’ time. Although the system causes the accused to face a dilemma whenever he or she is supposed to make a choice between waiving his or her constitutional right to trial and pleading guilty. The plea-bargaining system has proved itself in many jurisdictions to be very efficient particularly in completing criminal cases without inordinate delays
Reforming civil procedure : trends in continental europe and england and wales
(University of Pretoria, 2019) van Loggerenberg, Danie; Bekker, Thino; u14095752@tuks.co.za; Coetsee, Anlu Renette
This research involves the timeless question regarding the effective improvement of access to justice. The problems pertaining to access to justice, especially in respect of litigation, have been experienced and exposed in several jurisdictions across the world and has become known as the battle against costs, delays and complexities. The goal shared by most jurisdictions is to give all individuals the right to have his or her legal dispute resolved by a judicial entity at a proportionate cost and in a reasonable time. South African authors have made several suggestions in respect of reforming civil procedure in order to combat the problems identified above, to reduce the backlog in our courts and, ultimately, to enhance access to justice for all. This research aims to find solutions by investigating different categories of civil procedural reform and by identifying which categories could serve as beneficial and prospective reforms for South African civil procedure. Accordingly, trends in civil procedural reform in Continental Europe and England will be investigated. Three countries have been identified for comparative analysis: England, the Netherlands and Belgium. Within each of these countries two trends have been identified, namely (1) case management, pretrial protocols and the distribution of powers between parties and judges; and (2) digitalisation, modernisation and computerization of procedural rules. A chapter will be allocated to each trend, briefly describing the manner in which the procedure functions and its recent development, comparing and contrasting the situation with the South African position. In conclusion, it will be considered in what way South African jurisprudence could benefit from the comparative analysis and identified reforms. The new developments in South African civil procedure relating to the specific categories of trends will further be investigated and discussed.

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