Doctoral Degrees (Constitutional & Human Rights Litigation)
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Item Constitutional reform in Africa: positioning the new constitutional court of Zimbabwe in the transformation of civil and political rights.(2019) Tembo, Simbarashe.; McQuoid-Mason, David Jan.; Singh, Annette.This thesis investigated the prospects of the transformation of civil and political rights through the courts in Zimbabwe. The arguments made were based on the concepts of transformative adjudication and transformative constitutionalism as contemplated by Karl Klare. The adoption of a new Constitution in 2013 and the subsequent establishment of the Constitutional Court as the highest court in Zimbabwe made this study necessary. It is argued that the Constitution adopted in 2013 is transformative and the courts must ensure that the hopes and aspirations of the people embodied in the Constitution are realised. This argument is based on the understanding that there is a lack of political will to drive transformation through political or other legislative processes. Zimbabwe’s constitutional history was explored to make a case for transformation. Therefore, the views of scholars on constitutional transformation and transformative adjudication were considered. It was observed that court-led transformation would be an ambitious project given the volatile political situation in Zimbabwe where the denial of civil and political rights is used as a tool for silencing opposition and maintaining power by the political elite. It may be ambitious, but not impossible, for the Zimbabwean judges to take the lead on the transformation of civil and political rights. Lessons were drawn from the discussions of the South African Constitutional Court, and the Kenyan Supreme Court to carve a path for judiciary-led transformation. The study recommended a change of attitude and interpretative methods by Zimbabwean judges. The thesis also recommended that whilst engaging in judiciary-led transformation, judges should consider other adjudication methods to avoid conflict with the political arms in Zimbabwe.Item Enforcement of “human rights” standards against multinational corporations.(2019) Mpya, Maropeng Norman.; Ntlama, Nomthandazo Patience.No abstract available.Item A critical analysis of the home mortgage foreclosure requirements and procedure in South Africa and proposals for legislative reform.(2020) Singh, Ciresh.; Thaldar, Donrich Willem.; Steyn, Lienne.The execution against immovable property, or foreclosure, involves a delicate balancing of mortgagor and mortgagee rights. From a mortgagor perspective, he or she is protected by Section 26 (1) of the South African Constitution which provides that ‘everyone has the right to have access to adequate housing’. Although the right to have access to adequate housing does not entitle one to a right to ownership of a home, this right ensures that everyone has the right to a fair standard of living and is linked to other fundamental human rights such as the right to dignity, privacy and freedom. From a mortgagee perspective, they are protected by Section 25 of the Constitution which provides for the right to acquire property, and the right not to be unlawfully deprived of such property. Section 25 thus protects a mortgagee’s property rights and, in particular, his real right of security (foreclosure rights). Foreclosure against a home can be seen as an infringement of a mortgagor’s right to have access to adequate housing. However, it must be accepted that during foreclosure, the mortgagee enjoys a right to direct execution against the hypothecated immovable property (the home), in the event of a default by the mortgagor. When a mortgage agreement is signed, the mortgagor hypothecates his home as security for the capital lent by the mortgagee. During foreclosure a balance needs to be struck between the mortgagor’s right to have access to adequate housing and the mortgagee’s foreclosure rights. Unfortunately, South African law has not provided clarity as to the balancing of mortgagor and mortgagee rights during the foreclosure process and this has resulted in much inconsistency and, in some instances, abuse of process. The foreclosure process is currently not regulated by any specific legislation. With the exception of Rule 46A of the Uniform Rules of Court, there is no statute that specifically governs the foreclosure process. This gap in the law is concerning, given the economic and social impact of mortgage and foreclosure. Therefore, the decision to foreclose against a person’s home requires a structured framework. iii In this thesis it will be argued that the current laws governing foreclosure and the debt relief process, namely: the court rules, debt review under the National Credit Act, and insolvency laws, are inadequate and lack clarity, despite being intended to assist mortgagors facing foreclosure. In particular, the current laws do not provide any clarity as to when foreclosure against a home is justifiable or when it is not, nor do they provide any guidelines for the courts to consider during foreclosure proceedings. This lack of clarity has resulted in much confusion, and it is submitted that there is a need for clarity to be established. Therefore, the purpose of this thesis is to expose some of the inconsistencies and lacunae within the current foreclosure process, and to provide recommendations as to how these issues can be resolved. It will be concluded that the current foreclosure process and debt relief mechanisms in South Africa are inadequate as they lack clarity and uniformity. In particular, the current foreclosure process does not provide clarity as to how a mortgagee should exercise his foreclosure rights, nor does it provide adequate protection or debt relief options for South African homeowners. It is submitted that regulation and development of the foreclosure process is urgently needed. Accordingly, it will be argued that a Foreclosure Act is required to establish clarity in foreclosure processes, and to ensure a fair balance between the interests of all parties during foreclosure against a home.Item The coerced and forced sterilisation of women living with HIV in South Africa: a critical review of existing legal remedies.(2018) Badul, Chantal Jacqueline.; Strode, Ann Elaine.; Singh, Priya Pravesh.No abstract available.Item Privacy and technological development : a comparative analysis of South African and Nigerian privacy and data protection laws with particular reference to the protection of privacy and data in internet cafes and suggestions for appropriate legislation in Nigeria.(2007) Laosebikan, Foluke Oyelayo.; McQuoid-Mason, David Jan.No abstract available.Item The contribution of the African Charter on human and people's rights to the realisation of democratic governance in Africa.(2006) Ngwenya, Mpumelelo Thamsanqa.; Mubangizi, John Cantius.No abstract available.Item South Africa and the consociational option : a constitutional analysis.(1982) Boulle, Laurence Joseph.; Mathews, Antony Stuart.No abstract available.Item The concept of family courts in South Africa.(1981) Schafer, Ivan Derrick.; Olmesdahl, Michael C. J.No abstract available.Item An analytical study of the regulation of South African diamond trade from 1994 to 2009 with reference to aspects of the 1996 Constitution.(2009) Ndlovu, Fikile Portia.; Mneney, Edith.This study forms a unique study of South African diamond laws as developed in the context of the South African constitutional dispensation. This study is therefore a contribution to legal research and academia which forms an in depth consideration of international trade practices that influence the diamond industry which is used in this study specifically as a sample market. The diamond industry in South Africa provides a relatively comparatively small but resilient source of economic activity through trade in diamond products as luxury items and items used for industrial purposes. It is therefore crucial that laws related to the regulation of this industry are comprehensively and analytically studied for the purposes of understanding South African national and international diamond trade regulatory framework. This is done with the aim of illustrating that there has been a significant shift of prevailing wisdom in the South African diamond trade industry. It is now evident that more constitutionally justifiable and internationally sound diamond trade practices have been adopted and applied. This study not only serves to benefit South Africa as a diamond producing country but it will also add required knowledge related to the international trade context particularly having regard to the fact that South Africa plays a significant role in the global economy and its diamond trading activities do not occur in a vacuum. Therefore the international trade aspect of this study lends it a dual purpose analysis of diamond regulation laws. 1 Report of Task Team Appointed by the Minister of Minerals & Energy to Analyze the Memoranda and Evidence Laid Before The Commission of Inquiry into the South African Diamond Industry, 20 December (1999). Chapter 5. This was stated in the submissions by Mr. L.A. Lincon, a director of De Beers. He stated that South Africa had 10% by volume of the world total of around 105 million carats. South African mines are no longer major producers of all desired qualities. As a result it was agreed in 1992 that rough diamonds destined for South African factories could be provided from the CSO’s (Central Selling Organization) full range of diamonds available in London from sources world-wide.Item The concept of nuisance in English law : a study of the origins and historical development of the concept of nuisance from its earliest beginnings to the end of the nineteenth century(1978) Milton, John Robert Landrey.Abstract not available