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.
The role of artificial intelligence in civil litigation
(University of Pretoria, 2024-12) Baboolal-Frank, Rashri; u23965089@tuks.co.za; Ncube, Obakeng
Artificial Intelligence (AI) is a transformative technology that has emerged in the early twenty-first century, enabling computers to perform tasks traditionally requiring human intelligence. This study examines the role of AI in civil litigation in South Africa, focusing on its growing influence in legal practice. The adoption of AI in civil litigation is expanding at an unprecedented rate, surpassing initial expectations and progressing more rapidly than the first industrial revolution. This research explores the key areas of civil litigation impacted by AI, including online dispute resolution, electronic discovery and document review, legal research, and predictive analytics. As AI continues to reshape legal processes, it is essential to assess both its benefits and potential risks. Furthermore, this study proposes regulatory measures to ensure the ethical and responsible use of AI in civil litigation. The absence of a clear regulatory framework poses significant threats to fundamental procedural guarantees in civil justice, including the right to a fair trial, equality, human dignity, freedom, and effective adjudication. Accordingly, this research seeks to address the fundamental rights concerns associated with the unethical use of AI-driven tools in legal practice. By doing so, it aims to contribute to the development of a legal framework that upholds the integrity of the legal profession while embracing technological advancements.
The impact of colonisation on the indigenous conflict management practices on the African continent
(University of Pretoria, 2024-10-31) Baboolal-Frank, Rashri; siphokazi.mlaba@up.ac.za; Mlaba, Siphokazi Kholeka
The objective of this study was to elucidate the various ways in which colonial influence and power impacted upon indigenous African dispute resolution methods. The study provides an over-view of the systematic way in which colonisation was carried out and how the law was instrumental to its perpetuation and installation. The research further provides an analysis of the generic principles that constitutes indigenous African dispute resolution methods and provides discussion on the core values of these processes. The research demonstrates that the colonisation project was systematic and strategic when eroding and side-lining these dispute resolution practices, in an attempt to render them redundant and ineffective. The malleability of African dispute resolution methods has not only ensured that it remains relevant throughout the continent but has also made strides in influencing the development of western laws and judicial processes in Africa. Taking these strides into consideration, the research looks into the viability of reviving and possibly expanding the reach of African indigenous dispute resolution methods beyond the boarders of Africa.
The use of Stalingrad tactics and the abuse of process
(University of Pretoria, 2024-10) De Villiers, Wium P.; angeliquefryer24@gmail.com; Fryer, Hester Angelique
He, who is called to justice, is set out to delay justice. The purpose of a trial should be to seek truth and achieve justice. However, one cannot fulfil the purpose of a trial if your day in court never comes. Some matters never make it to trial due to constant delays that occur. Whether it be systemic delays or deliberate delays. Systemic delays or those resulting from overloaded court schedules can lead to unreasonable postponements. Unfortunately, many accused exploit these delays with tactics designed to evade responsibility. It goes without saying that justice delayed, is justice denied. The delaying tactics are often referred to as Stalingrad tactics, where an accused uses every manoeuvre available to oppose, obstruct, or delay the efficient and effective determination or finalisation of matters. By using these tactics, an accused often tries to invoke the remedies of Section 35(2)(d) of the Constitution of the Republic of South Africa, 19996 or Section 342A of the Criminal Procedure Act 51 of 1977, in particular the extraordinary remedy of a permanent stay of prosecution. However, courts are, more often than not, sceptical to grant a permanent stay of the prosecution when the delay is due to the accused individual’s own doing. This aspect touches the concept of abuse of process which will also be dealt with in my dissertation. This dissertation focuses on the Stalingrad tactics and looks at how former President Jacob Zuma made use of the Stalingrad tactics in his corruption case and further related cases. I then further evaluate how the courts have dealt with the Stalingrad tactics. The study evaluates how the courts could ensure that an accused using Stalingrad tactics will not escape justice and abuse court processes.
Development of class action litigation in South Africa : a comparative study
(University of Pretoria, 2024-10) Bekker, Thino; u19085487@tuks.co.za; Kubeka, Themba Hope
This study investigates how the certification of class action litigation has evolved and became increasingly difficult in South Africa, particularly since the 1996 Constitution acknowledged class action litigation. The legal framework governing class action is entrenched in the Bill of Rights of the Constitution, with special focus paid in section 38(c), which permits legal practitioners to advocate for collective claims when the Bill of Rights claims are violated. The need of the designated class, common legal challenges, and the guiding principle of the interests of justice constitutes some of the key requirements for class action certification which are highlighted. While the interests of justice principle were incorporated to help facilitated certification, it has led to great confusion and uncertainty because the courts have inadequately defined what it means and its limitations, allowing presiding officers a great deal of discretion. This lack of clarity makes it more difficult for plaintiff to obtain legal representation and generates questions about fair access to the courts. Employing a comparative approach, this study will analyze class action laws in the USA and Quebec to find best guidelines that might guide the legal system in South Africa. The developmental history of class action litigation in South Africa opens up the study, which is divided into six chapters. A comparison and contrast of international models, an in-depth review of policy considerations and suggestions for legal reform to enhance the effectiveness and certainty of class action litigation in South Africa round out the study.
The use of Artificial Intelligence in alternative dispute resolution practice
(University of Pretoria, 2024-10-28) Baboolal-Frank, Rashri; u18052500@tuks.co.za; Snyman, Iliné
This dissertation examines Artificial Intelligence and the manner it is used in Alternative Dispute Resolution practices. The study focuses on the legislative framework, challenges and overall implementation of AI in dispute resolution practices. Artificial intelligence, stemming from an idea born in the 1950s as a means for experts to access computational intelligence, has progressed to such an extent that it roughly controls 200 billion dollars of the world’s economy in the present day. Despite this monumental growth, this dissertation acknowledges the shortcomings of artificial intelligence by exploring (amongst others) its threat to confidentiality of users, the presentation of algorithmic bias and overall security concerns. This study provides a thorough evaluation of AI’s role in promoting the accessibility and efficiency of ADR while addressing potential challenges and risks related to data breaches, privacy concerns and systemic bias. This study further highlights the importance of adopting much needed regulating frameworks that can properly address and minimalise these challenges and risks, specifically from a South African point of view. Finally, this study will render recommendations to address the lack of legal regulation in AI as well as how to effectively address the adversities that Alternative Dispute Resolution practices present.
Investigating the restorative nature of the traditional dispute resolution methods
(University of Pretoria, 2024) Baboolal-Frank, Rashri; u25463731@tuks.co.za; Malatsi, Matome Emmanuel
Most African countries have adopted a pluralistic legal system which includes the inherited legal system and the customary legal system of the original inhabitants. The inherited legal system took superior status whilst the traditional legal system was relegated to the inferior status. African customary communities found it difficult to access justice through the inherited legal system due to travelling costs to access urban areas where courts are located, hostile courts environment and unfamiliar foreign languages used in courts. Before, during and after colonialism, African traditional communities always had traditional dispute resolution methods. These methods are deeply entrenched in African custom. Their main objective was to reconcile disputants and restore peace and harmony. These methods thrived in flexibility, speed, restoration and reconciliation. The elders are the key actors in implementing the TDRM due to their wealth of knowledge and wisdom regarding customary principles and practices. Most African communities prefer TDRM because they are more accessible. They promote access to justice particularly to the marginalised and remote rural communities in the outskirts. However, the TDRM has strengths as well as weaknesses. Many African countries have adopted legislation that recognise customary law, including the TDRM. This development provides a conducive platform for integration of the TDRM and formal legal system.
The impact of arbitration referrals in South Africa’s petroleum industry
(University of Pretoria, 2024-11-29) Baboolal-Frank, Rashri; u23966531@tuks.co.za; Mosikidi, M.P. (Mathapelo Pedro)
This paper focuses on how effective referrals of disputes resolved through arbitration in the petroleum industry as provided for in section 12B of the Petroleum Products Act 120 of 1977 (PPA) are, and the impact of the court cases associated with section 12B of the PPA on the regulation of contractual disputes between oil companies and retailers in South Africa’s petroleum industry. Section 12B of the PPA makes provision for the resolution of disputes between oil companies and retailers through arbitration. Most franchise agreements between oil companies and retailers are such that the oil company supplies petroleum products to the retailer and allows the retailer to use its branding to operate a filling station. Disputes often arise when the oil company or retailer have breached any of the clauses in the franchise agreement, leading to a breakdown in the contractual relationship. Disputes still end up in court, and even with the option of resolution through arbitration, parties approach the court before and after the arbitrator has made the award. The main research question investigated in the dissertation is: How effective are arbitration referrals in resolving disputes in South Africa’s petroleum industry by the Controller of Petroleum Products? And can the relevant court judgements assist the Controller of Petroleum Products in making policy changes to improve arbitration laws in the petroleum industry?
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.

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