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- Over the years concern has been growing about justice being done in South Africa. Society’s faith in the justice system is not as strong as it was before and matters are being taken on appeal all too frequently. In addition to this, the professional body for legal practioners1 (The Law Society of South Africa or LSSA) is concerned that law graduates do not have all the attributes necessary for the profession. The LSSA is also concerned that the legal qualification (Bachelor of Laws or LLB) at most institutions focuses only on the “knowledge of the law” and not on the development of skills or abilities that will help graduates cope in the working world of the profession. The law profession in South Africa has evolved to the point that it is no longer simply about the implementation of law. The Constitution2 has brought with it the requirement of due process, the right to a fair trial and the right to confront an accuser. These developments in the law call for further development in the skills of those who practice the law. Changes in the judiciary and the legal profession in general have brought with them the need for a review of how litigation and adjudication take place. This study focuses on key areas of communication in the trial process, namely demeanour and non-verbal communication. Neither of these areas have enjoyed the benefit of substantial theory building by scholars. The ability to correctly deal with evidence is a core competency for any presiding officer and legal practitioner as it impacts on the right to a fair trial. The Constitution has also emphasised the requirement that “justice must be seen to be done” and there appears to be a weakness in the system in this regard. This study focuses on evidence of demeanour and non-verbal behaviour/communication in the courtroom and how they impact on the outcome of trial. In as much as these concepts feature rather often in judgements there is a limited amount of literature to refer to for guidance on how to deal with demeanour and non-verbal behaviour during a trial. The aim of this study is to accentuate the fact that demeanour and non-verbal behaviour/communication do indeed impact on the outcome of the trial and that presiding officers, to some extent, lack adequate training and skill to effectively evaluate this type of evidence. The proper evaluation of evidence is central to a fair trial and justice. This study sets out the various approaches to: non-verbal communication within the social context of the courtroom, how the non-verbal behaviour of role players in a trial is dealt with, and how evidence of demeanour is dealt with when evaluating evidence. The gradual, but slow, growing body of knowledge in this regard illustrates what an integral part of the communication process of non-verbal communication really is. The qualitative approach adopted by this study (where presiding officers were interviewed) expanded the researcher’s understanding of how presiding officers deal with non-verbal communication/behaviour and demeanour when evaluating evidence. The responses from the in-depth interviews were mechanically recorded and this afforded the researcher the opportunity to gain insight into the perspectives of the presiding officers. The analysis of the responses led to the emergence of themes that were then formulated in a theoretical experience. When questioned about whether they had received sufficient training in how to deal with evidence of demeanour and non-verbal communication/behaviour all the participants in this study expressed a need for training in this regard. The study revealed that legal realism coupled with a functional approach to dealing with non-verbal communication and demeanour in the courtroom will improve the quality of judgements and add value to the work of presiding officers. The formulation of guidelines on how to better deal with evidence of demeanour and non-verbal communication/behaviour will take the judiciary and the legal profession closer to ensuring that “justice is seen to be done”
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- The purpose of the study was to firstly determine whether the categorical ban of minors from entering into a civil union undermines the “the best interests of the child” principle, and if so, whether section 1 of the Civil Union Act unjustifiably violates the Constitution. The study furthermore evaluated the current South African marriage law system in determining whether the prohibition of minors from entering into a civil union, whilst the Marriage Act and the Recognition of Marriages Act afford minors (provided they obtain the required consent) the right to enter into a marriage, results in disparity and whether such disparity violates minors’ right to equality before the law and their right to have their dignity respected and protected. The study was conducted by applying qualitative research methodology. An interpretivist paradigm was applied whilst a descriptive and interpretive design were used to interpret and analyse the data. The data was collected in two phases. Phase one consisted of a historical and comparative analysis of primary and secondary sources. Semi-structured interviews were conducted in terms of the second phase of the data gathering proses. In conducting the interviews, ten participants were purposively selected from the offices of the family advocates in the area of Durban, Pietermaritzburg and Ntuzuma. Eight common themes emerged from the interviews. The findings, in respect of the second phase of the study, were integrated with the findings in respect of phase one. Ultimately the study concluded that as a result of section 1 of the Civil Union Act categorically excluding “the best interests of the child” principle, section 1 of the Civil Union Act is in violation of section 28(2) as well as other fundamental constitutional rights of minors. From the comparative analysis that was conducted within the first phase of the study, recommendations are made to address the indifference that results from the application of the various legislations regulating the current South African matrimonial law system.
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- The thesis involved a comparative analysis of compliance with international conventions dealing with the application of children’s rights in three Sub-Saharan jurisdictions, namely, South Africa, Kenya and the Democratic Republic of Congo (DRC). All the three countries selected for comparative analysis signed and ratified the Convention on the Rights of the Child (CRC). In this way they committed themselves to work towards the fulfillment of children’s rights at domestic level respectively. However, for many years realising full compliance with regard to children‘s rights still presents a challenge for each of these countries selected. The purpose of the investigation is to explore the extent to which children’s survival rights were fulfilled, and to identify ways to overcome the challenges that the three countries face. The concept of children’s survival rights in this study denotes rights to basic nutrition, basic health care services and social security. To answer the question the study relied on a qualitative evaluative approach based on desktop and library research. The researcher used primary and secondary sources. Although the investigation revealed that the three countries have domesticated children’s rights norms within their laws, certain gaps in implementation present a cause for concern. As a result the findings from the study confirm that despite the gaps highlighted herein, South Africa has made significant progress towards realising children’s rights. Kenya as well is following in the foot prints evident in the South African example provided it tightens its law enforcement and adopts relevant legislative and other measures to realize its international obligation. The country where children’s survival rights are yet to be realised is the DRC. The study recommends that the South African department of social development should expedite the implementation of child support grants to include distributing equal benefits to every child throughout all communities without discriminating for whatsoever reason. The findings relevant to the scenario in Kenya suggest that Kenya has a duty to consider embarking on a vigorous programme to train its professional service to comprehend laws, policies, regulations and guidelines to maximize service delivery. With regard to social protection in Kenya and given the fact that forty percent of the population consists of children from poor families, the study recommends that the cash transfers purporting to benefit orphans and other vulnerable children in Kenya needs to be extended beyond orphans and vulnerable child-beneficiaries to include children throughout all communities regardless of financial or other status. Deviating from better placed child-rights centres in South Africa and Kenya, by contrast the DRC needs to design, implement, monitor and evaluate child support grant programmes primarily targeting ultra-poor families. Furthermore, the study finds that the DRC can learn a lesson from South Africa if its government is to succeed to respect, protect, promote and fulfil the rights in the Bill of Rights as envisaged in the Constitution. In view of the findings, the study produced a model guideline for effective realisation of children’s rights. This study potentially contributes to a growing body of international and regional research about children’s rights with a particular focus on children’ survival rights in South Africa, Kenya and the DRC
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- This research investigates the environmental legislation of South Africa and Nigeria as tools for control of gas emission within the context of the universal morality of environmental protection. The study highlights the other side of industrial activities -the devastating effect on health, community and the natural environment of the release of noxious gases from oil production activities. The gas emission situation in South Durban- South Africa and Niger Delta, Nigeria provide a common basis for the study. The study examined relevant legislation for control of gas emissions in the two countries. This involves identification and review of International and regional agreements, soft laws, constitutions and domestic legislation considered applicable to control of gas emission and air quality management in the two countries. The over reliance of the two countries on production of primary energy sources like coal and petrol chemicals and other fossils is revealed among others as major sources of gas emission in the two countries. Theoretically, there exist frameworks for emission control in the two countries. While both countries are signatories to relevant treaties and conventions on environment and emission control, there are fundamental differences in the nature and approach of the two countries to gas emission control and environmental law making in general. Environmental protection in South Africa is rooted in the universally acclaimed principle of sustainable development. The Constitution of South Africa not only provide for environmental rights but gives clear mandates to the parliament to legislate towards pollution prevention, conservation promotion and sustainable development. These principles underlie the South African emission control. On the other hand, the absence of a constitutional provision on sustainable development and right to environment in the Nigerian constitution limits emission control to the application of sector based legislation, in this case, oil industry legislations. These statutes predate the 1999 constitution of the country and therefore lack the necessary constitutional impetus regarded as essential for effective emission and environmental control. While it may be too early to assess the performance of the South African framework which together with the international components consists of post 1996 legislation, the researcher found the South Africa framework clear, direct and ascertainable. In the case of Nigeria applicable statutes are mostly not direct and there is a deliberate exclusion of the application of the provisions of the new National Environmental Standard Enforcement Agency (NESRA) ACT which established a semi- independent environmental body to emission and environmental problems in the oil industry. This development is a setback in emission control and environmental management in the country. At present, applicable oil industry statutes do not promote contemporary principles of environmental protection like sustainable development and environmental rights content. The Study found that despite available international and domestic frameworks, gas emission remains a major challenge in the two countries. Appropriate recommendations are made towards addressing the identified barricades. These include capacity building and a strong political will to drive the new regime in South Africa. In Nigeria, to make legislation a veritable tool for emission control demands urgent law review among other measures.
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- In 2010, the Law Society of South Africa, expressed concern over the number of law graduates that were lacking in essential skills and they stressed that clients in legal matters are placed at risk if new practitioners are not properly equipped to assist them. Many lamented the academic nature of the LLB programmes at most tertiary institutions as concentrating only on the “knowledge of the law” rather than the enhancement of important skills and abilities. The “radical dichotomy” that exists between theory and practice in the law curricula at most tertiary law schools is at the root of the problem Whilst there is no denying that the ubiquity of doctrinal development is central to legal studies, law is no longer seen as a “technique of professional practice” only. Legal Realism has highlighted the fact that law permeates all facets of life and should therefore be studied as an embodiment of knowledge that permeates the “real” world. The focus of my study is on one key area of communication that has been largely ignored thus far in the legal arena, i.e. non-verbal communication. Effective communication is a fundamental dexterity to the attorney and a lack thereof can see the Law Society of South Africa (LSSA) Press Release on the findings of the LLB Curriculum Research as presented by the Council of Higher Education (CHE) at a Colloquium on 11 November 2010. Result in the likelihood of psychological and emotional long-term difficulties. My study furnishes some insight into the challenges facing most attorneys during the consultation process. The study outlines the importance and ubiquity of the different sign systems (semiotics) that regulate human interaction. The growing body of knowledge about non-verbal communication has illustrated that it is the main sign system that parallels verbal communication in the human interactive process. The aim of this study was to establish the attorneys’ perceptions of implementing non-verbal communication into their daily lives and the legal system in South Africa. A qualitative approach (where attorneys were interviewed) broadened my understanding of the attorneys’ experiences and I was allowed to be privy to their personal interpretations and perspectives on non-verbal communication in the legal arena. By recording and documenting their experiences, valuable insight was gained into their emotional and psychological responses to their legal experiences. The analysis of their experiences yielded unique and distinct themes to emerge, which was then formulated into a theoretical experience. The attorneys were unanimous in their call for training in non-verbal communication. It was anticipated that this would serve as a means of alleviating some of the challenges facing them during the consultation process. Successful implementation would require attorneys to have a positive, flexible and creative approach to using non-verbal skills in consultations with clients. The study finds that legal realism combined with a semiotics methodology offers the law student an opposite approach to researching and analysing systems of meaning within the communicative legal framework. A framework that integrates realism, semiotics and non-verbal communication contains all the ingredients needed to improve the communicative legal skills of the attorney. The amalgamation of non-verbal communication skills with traditional legal skills would go a long way in removing the deep-seated dichotomy that still exists between theory and practice in the LLB curricula.
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- In this work the candidate discusses improper splitting of charges which 15 a problem in our criminal courts. The candidate starts by defining improper splitting of charges and then discusses its origin and guidelines which are followed by our courts in determining whether or not a charge has been split. Reference 15 made to the provisions of Chapter Three of the interim Constitution of the Republic of South Africa which provides, among others, that an accused person is entitled to a fair trial. The right to a fair trial includes the right to have recourse by way of appeal or review and to legal representation. The candidate discusses these rights. Numerous reported and a few unreported cases have been discussed. In these cases courts tested the facts of the cases against the tests and guiding principles. In most of them it was found that splitting of charges was improper. In many cases judges stress that improper splitting of charges results in the duplication of punishments. In chapter four of this work the meaning and interpretation of a fair trial 15 discussed, In the concluding chapter some recommendations are made.
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- A confession may be defined as an out-of-court statement by a suspect in which he or she voluntarily, knowingly and intelligently acknowledges that he or she committed or participated in the commission of a crime and which makes it clear that there is no defence in law that would make his or her conduct lawful. This is what the appeal court meant in the Becker case when it held that a confession must be defined as an unequivocal admission of guilt by an accused person. There is a need that the stringent requirements for the admissibility of confessions should also govern the admissibility of admissions and exculpatory statements. Confessions and admissions remain proper elements in law enforcement and it has been shown in some reported decisions that some criminal cases are capable of solution only by means of confessions and/or admissions. There are three phases that are important in determining whether a confession is admissible in evidence. The first phase is when a suspect is interrogated by the police. This is a phase of our predominantly accusatorial system of criminal procedure. There is a need to protect a suspect against untoward conduct by the police during his interrogation. Our new constitution has incorporated a Bill of Rights, and our common law also protects most of the interests which • are protected by the Bill of Rights (e.g. a suspects presumed innocent until proved guilty, the privilege against self-incrimination forms part of our law and the right to legal representation is recognised). The second phase is when a confession is recorded either by a magistrate or a justice of the peace. This is a crucial stage because the "YES" and "NO" answers of a suspect on a roneod confession form and additional questions put to him may satisfy a court of law that a confession was made freely and voluntarily be an accused in his sound and sober senses and without having been unduly influenced thereto. This procedure is unique to our law. The third phase is when the admissibility of a confession is challenged in court in a trial within a trial. If a suspect is undefended, he may not adequately exercise his procedural rights. But, if he or she made a confession to a magistrate, a suspect is presumed to have acted freely and voluntarily etc. and a confession is admitted in evidence on its mere production if his or her name corresponds to the name of the person who has signed the confession and if it appears on the document containing the confession that it was made freely and voluntarily and without his or her having been unduly influenced thereto. It is recommended that before an unrepresented suspect is cross-examined on the contents of his confession where he or she has made this possible, he or she should be warned. If after explaining to him or her what cross-examination means the suspect does not understand, a legal representative should be appointed to assist him or her. It is recommended that evidence of a psychologist who has been nominated by an accused should be led where the latter is charged with a serious crime; that police interrogation be reformed in such a way that no one, whether suspected of committing high treason or any other serious crime, shall be subjected to mental torture; physical torture, assault or inhuman or degrading treatment; that the warning given to a suspect prior to the recording of his confession be reformed as discussed in this thesis; that the shift of onus from the state to an accused under certain circumstances be abolished; that the list of persons who may record a confession be increased as recommended in this thesis and that fundamental fairness during the interrogation of a suspect and during the recording of his confession be adopted as a new criterium for the admissibility of confessions.
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- Cable theft could be currently considered as a significant problem, globally. The Eskom statistical figures indicate that cable theft creates a massive problem for service delivery and places a vast amount of pressure on its financial resources. Cable theft is highlighted on various different platforms within Eskom’s business operating units and while efforts for increased security and protection measures are in place, these measures appear to be inadequate to prevent it. This study investigated the extent of cable theft at Eskom and examined what actions Eskom and private security personnel should undertake to prevent it. This study further determined what action steps need be taken by Eskom’s internal security management team, and those responsible for the capturing of all relevant information related to it, in order to prevent any form of cable theft. This research has made four key contributions to the subject: (i) A new Eskom security structure was proposed, (ii) a newly designed Eskom training curriculum framework was designed for all private security personnel working at Eskom facilities, (iii) proposed changes to Eskom’s CURA system were made, and (iv) proposed changes were suggested for Eskom’s internal ENECC cable theft reporting system
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- Proof beyond a reasonable doubt is the standard of proof that is applied in criminal cases. The burden of proving the guilt of the accused in this manner rests on the state, and does not shift to the accused. This is in contrast to the evidential burden which may shift to the accused to rebut a case against him or her. There have, however, been statutory exceptions where the burden shifted to the accused. But this has been changed by the Constitution. The rule has ideological and philosophical underpinnings. Criminal law is an awe-inspiring aspect of the law the enforcement of which could lead to the deprivation of the liberty of a person. Personal liberty in Western society is a cherished value so that its deprivation should result if the state has proved beyond a reasonable doubt that the accused is guilty. This is often concretised in the saying that it is better for a hundred guilty persons to go free than that one innocent person be found guilty. The rule that the state has to prove the guilt of the accused beyond a reasonable doubt originated from English law during the eighteenth century and it was aimed at protecting the individual against the abuse of state power. Although this is a long-standing rule, there has been no clear definition of this rule either in English law or South African law. The duty to prove the guilt of the accused beyond a reasonable doubt extends to every element of the offence. There are instances where this may not be the case. These are cases where judicial notice is taken of certain facts or where there is strict liability and it is therefore not necessary to prove the existence of men's rea especially in the form of intention. Although these do not completely dispense with the requirement of proving the guilt of the accused, they result in the reduction of this burden. In a number of legislative enactments, in the past the burden of proof was shifted to the accused through the use of presumptions. Not all presumptions had this effect but only those where the accused was presumed guilty because of the existence of certain facts and had to prove his or her innocence beyond a reasonable doubt. This is called the reverse onus. The Constitutional Court decided that these were in conflict with the provisions of sections 25 and 35 of the interim and final Constitutions respectively which, inter alia, provide for the right to silence and the presumption of innocence. Consequently these have been declared invalid as being unconstitutional. In this way the Constitution has been interpreted to affirm the core democratic values of liberty, equality and human dignity. Although the standard of proof beyond a reasonable doubt has been used, it has not been clearly defined. Proof beyond a reasonable doubt can be regarded as proof which should convince a reasonable fact fader after considering all the relevant evidence that the accused is guilty of the offence with which he is charged. This proof must be based on evidence and not merely on intuition or belief otherwise it is not a standard at all.
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- This study investigates the impact of broadcast copyright on access to the broadcasting of football in Kenya and South Africa. Broadcasting is the most important and popular platform over which football matches are distributed globally. Modern broadcasting and telecommunication technologies have created multimedia channels and platforms over which football events are exploited. The exploitation of these sporting events places greater reliance upon copyright and other intellectual property rights. Intellectual property rights in general and copyright in particular monopolises and individualises that which they protect. When football events are broadcast in Kenya and South Africa, they are assimilated into broadcasts which form one of the categories that are copyright protected in the two jurisdictions. At the same time when football games are recorded before transmission, they are protected as audio-visual works within the meaning of the copyright laws of South Africa and Kenya. The exclusive rights that broadcasting organisations enjoy in Kenya and South Africa create a monopoly over the broadcast football matches. Access to these events, therefore, on the part of the public becomes discretional at the whims of the broadcaster transmitting events. On the other hand, the study found out that football is a popular culture not only in Kenya and South Africa but also across the world. Football is an expression of the people‘s culture and therefore glue that binds people together. It is viewed as a cultural heritage that promotes collective consciousness of a people. It promotes national cohesion and nationhood and thus important for countries like Kenya and South Africa where ethnicity and racial divisions are so pronounced. This calls for stronger legal and policy frameworks towards greater public access to broadcast football. This necessity is also justified by the fact that media transforms football events into stories through commentaries and analysis. The football events therefore become informational assets that have greater constitutional underpinnings within the context of the right to information. The public therefore has a constitutional claim to broadcast football as sports information as well as under the relevant international instruments like the International Convention on the Right of the Child of 1989 and the International Charter on Physical Education and Sport. The major findings of the study are that live broadcasting of football events is copyright protected in Kenya and South. This copyright protection though is not backed up by copyright doctrines and philosophies because transmission of football events is not a creation of the mind. Additionally, the exclusive rights that broadcasters enjoy over their broadcasts are buttressed by technological protection measures employed by pay TV services which encase absolutely football events. This situation has been exacerbated by the migration of premium football events from free-to-air (FTA) channels to subscription services which further limits access to broadcast football events that are encrypted. Based on the foregoing findings, the study makes appropriate recommendations that would bring Kenya and South Africa to a level consistent with the global development. The global development is constructed from the practices and comparative analysis done vis-à-vis developed countries with strong traditions of sports and intellectual property rights
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