Theses and Dissertations (Procedural Law)

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

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A review of recent legal reforms on domestic violence
Mabila, Chigo (University of Pretoria, 2025-10-31)
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the Criminal and Related Matters Amendment Act 12 of 2021, and the Domestic Violence Amendment Act 14 of 2021 were all signed into law in 2022 to strengthen South Africa’s legislative response to gender‑based violence. Despite the enactment of these reforms, there is limited literature assessing how the new provisions have been interpreted and applied by the courts, particularly in cases involving domestic violence. Although these statutes represent important progress in enhancing the protection of victims, emerging case law suggests that several substantive and procedural shortcomings continue to hinder their effective implementation. This study examines how the South African Police Service and the courts have applied these legislative amendments in practice, and to identify gaps, failures, and systemic barriers that undermine the intended protective framework.
Assessing the effectiveness of judicial case management in reducing delays: a comparative study between South Africa and England and Wales
Masevhe, Takalani Ruth (University of Pretoria, 2026-02-18)
Judicial Case Management has been implemented in South Africa as part of the Uniform Rules of the High Court since July 2019. The application of judicial case management in the South African High Court was aimed at eradicating persistent case backlogs and decongest court rolls. Despite the implementation of judicial case management, the Gauteng Division of the High Court continues to experience significant case backlogs and delays in finalising civil litigation. This study adopts a comparative approach to examine the civil judicial system of England and Wales to determine reforms aimed at improving judicial case management regime in the South African High Court. The analysis in this study reveals structural and procedural shortcomings of judicial case management and perpetual delays in finalising cases in the Gauteng Division of the High Court. The study proposes reforms aimed at improving judicial case management to harmonise the application of judicial case management within the South African High Court.
The proficiency to implement online alternative dispute resolution in Mauritius, Nigeria, and South Africa
Mgwenyana, Khanyisa Kim Agreeneth (University of Pretoria, 2025)
The study investigates the implementation of Online Alternative Dispute Resolution (OADR) systems in Mauritius, Nigeria, and South Africa. It examines how OADR, specifically online arbitration, can be adapted to align with both international legal standards and culturally grounded principles such as ubuntu. The study was motivated by the increasing reliance on Online Dispute Resolution (ODR) systems in response to the growth of e-commerce, where disputes are high in volume but often low in monetary value. While ODR has emerged as a practical solution to these challenges, its effectiveness in African contexts remains underdeveloped due to the absence of cultural integration and the implementation of standardised frameworks. The research employs a desktop methodology informed by a doctrinal methodology and supported by a comparative legal analysis. It evaluates legal frameworks, policy environments, and ethical standards that underpin OADR systems, using the Organisation for Economic Co-operation and Development’s (OECD) three core pillars, which are governance, policy levers, and ethical safeguards as benchmarks for assessing proficiency. The study analyses the extent to which these international benchmarks are reflected in the selected African jurisdictions and how ubuntu’s value system can inform a culturally relevant model. Through Chapters 1 to 4, the thesis establishes a theoretical and legal foundation for OADR and identifies the current limitations in the three countries. The research reveals a critical gap, which is the absence of a unified, technically sound, and culturally resonant proficiency standard for OADR systems in Mauritius Nigeria, and South Africa. Existing legal frameworks are often fragmented, with little consideration for African cultural values in their design and implementation. The novelty of the thesis lies in its proposal for a culturally embedded proficiency model that integrates ubuntu principles into the legal-technical infrastructure of OADR systems. This approach not only enhances the legitimacy and accessibility of OADR in these settings but also contributes to global discourse on culturally adaptive digital justice systems. The model serves as a practical and conceptual framework for guiding future implementations of OADR within Africa and beyond.
The role, impediments on, and effectiveness of the police and the National Prosecuting Authority in successfully combating crime in South Africa
Machethe, Moses Melton (University of Pretoria, 2026-02-16)
This research examines the role played by the South African Police Services and the National Prosecuting Authority in addressing the issues of crime in South Africa. It examines the empowering provisions establishing and bestowing the responsibilities of crime control in these institutions, and the problems faced by these institutions in performing their functions. Crime control is a cornerstone of every successful nation. It determines the reputation, status and stability of the country in a global sphere. The stronger the military, laws and security forces of the country, the more respect and desirability the country will receive from other countries. The research analyzes whether the SAPS and the NPA are successful in keeping crime under control, and if not, what can be done to improve or strengthen these functionaries to ensure a stable and safe South Africa. In concluding, the research focus on certain recommendations on what South Africa can implement to better address the problem of crime and address factors which contribute to its failure to address the issues of crime. It is emphasized that the way of life evolves over time, and leads to changes in crime dynamics, and so should the law. The research suggests that is it about time to strengthen the law, relook at issues of punishment and draft laws aimed at addressing the current crime situation in South Africa.
Universal ethics for international arbitrators
Mahlangu, Surprise (University of Pretoria, 2025-10)
International arbitration serves as a dispute resolution mechanism within the confines of a rapidly evolving landscape of global trade. It is imperative that international arbitrators who will presiding over international arbitration disputes abide to ethical guidelines that are universally recognised. International arbitrators do not have a universal ethical code. There are standards and guidelines that already exist; however, they are not definitive. The existing common ethical standards serve as a foundation for the establishment of a uniform code for international arbitrators. The standards that exist are interpreted and applied differently in various jurisdictions around the world. The recognition of the common ethical standards supports the case for the establishment of a uniform code. The uniform code will mitigate frivolous challenges related to arbitrator conduct, and enhance integrity and trustworthiness of international arbitration as a dispute resolution mechanism.
The role of arbitration as a dispute resolution mechanism in the sale of maize within the value chain in South Africa
Mafiri, Winnie (University of Pretoria, 2025-10-04)
This paper examines the role of arbitration as a dispute resolution mechanism in the sale of maize in South Africa. The sale of maize is governed by the Agricultural Products Standards Act No.119 of 1990 and Regulations relating to the grading, packing, and marking of maize intended for sale in the Republic of South Africa, while arbitration is regulated by the Arbitration Act No.42 of 1965. Through SACOTA, maize stakeholders created the SAGAS Arbitration Rules, which AFSA approved. When disputes arise in the maize industry due to non-compliance with the Maize Grading Regulations, the Executive Officer: APS is requested to interpret the Maize Grading Regulations to resolve disputes amongst the maize stakeholders. The parties involved in the disputes fail to utilise the Regulations regarding Appeal Procedures and Section 10 of the Agricultural Products Standards Act No. 119 of 1990, as well as the arbitration process specified in the SAGOS Contracts. Instead, they choose to take their disputes to litigation. The Department of Agriculture only becomes aware of maize non-compliances that are arbitrated when the awards are brought to court for review. The maize stakeholders have the SAGOS Contracts that govern the trade of maize along the maize value chain, which contain different clauses such as confidentiality of the arbitration process and awards. The research aims to investigate the role of arbitration in the sale of maize in South Africa, the effectiveness of arbitration in resolving disputes within the maize value chain, and to identify the legislative framework that may hinder the utilisation of arbitration for maize related disputes. The research findings are that the maize stakeholders are aware of the Regulations regarding Appeal Procedures, Section 10 of the Agricultural Products Standards Act No. 119 of 1990 and SAGAS Arbitration Rules, but they are not effectively used. The confidentiality clause in the SAGOS Contract hinders the effective use of arbitration as a dispute resolution mechanism in the maize industry. Arbitration awards only become known when they are referred to court by the unsatisfied party. The maize industry has the power to amend its SAGOS contract and SAGAS Arbitration Rules to exclude the confidentiality clause because the Arbitration Act No.42 of 1965 is silent on the confidentiality of arbitration proceedings and awards.
The alternative dispute resolution of international financial disputes
Raubenheimer, Ettian (University of Pretoria, 2025)
In this thesis, The alternative dispute resolution of International Financial Disputes, the candidate examined the history and development of International Financial Disputes with specific reference to the role of International Financial Crises in the evolution of International Financial Law as soft law. The candidate analysed and discussed the historical development of the mediation and arbitration as alternative modes of dispute resolution as specifically applicable initially to commercial disputes and later as the incidence of international financial disputes increased particularly as a result of the Global Financial Crisis of 2008/2009. In the analysis the candidate examined the apprehension among role players to utilise these dispute resolution modes and the initiatives to overcome the apprehension suitability of financial disputes to mediation and arbitration. The suitability of mediation and arbitration for the resolution of international financial disputes were examined in depth and proposals made to facilitate the arbitration and mediation processes to be more attractive to role players in the financial dispute marketplace to revert to these alternative dispute resolution modes.
Criminal accountability for war funding
Malan, Alwyn (University of Pretoria, 2024-10-31)
The Political-West, allegedly engaged in war crimes, including the funding of war, is a critical player in the Ukraine conflict. These crimes, rooted in National and International Criminal Law, are committed as part of a proxy war against the Russian Federation. The proxy is Ukraine, a country being funded for war by the Political-West. Contracts for procuring war items are awarded to the Military Industrial Complex, leading to a significant amount of weapons, ammunition, and military equipment ending up on the black market. The Ukraine conflict also involves the Political-West’s imposition of economic, travel, and geo-political sanctions aimed at weakening Russia’s economy and forcing political change. The Political-West justifies its actions by claiming that Russia poses a threat to the New World Order. War creates opportunities for the crimes of Human Trafficking, Organ Harvesting and Money Laundering.
A re-evaluation of the special investigating unit and special tribunal in South Africa
Ndunyana, Luvuyo (University of Pretoria, 2018-02)
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
Ncube, Obakeng (University of Pretoria, 2024-12)
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
Mlaba, Siphokazi Kholeka (University of Pretoria, 2024-10-31)
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
Fryer, Hester Angelique (University of Pretoria, 2024-10)
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
Kubeka, Themba Hope (University of Pretoria, 2024-10)
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
Snyman, Iliné (University of Pretoria, 2024-10-28)
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
Malatsi, Matome Emmanuel (University of Pretoria, 2024)
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
Mosikidi, M.P. (Mathapelo Pedro) (University of Pretoria, 2024-11-29)
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
Ndebele, Linda Tendesai (University of Pretoria, 2023)
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
Lancaster, Claribel (University of Pretoria, 2024-04-03)
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
Rakgwale, Mmakgoedi Sylvia (University of Pretoria, 2023-12-19)
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
Carter, Katelyn-Mae (University of Pretoria, 2024)
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.

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