Masters Degrees (Constitutional & Human Rights Litigation)

Permanent URI for this collection

https://hdl.handle.net/10413/8395

Browse

Now showing 1 - 20 of 47

A critical analysis of eThekwini Municipality’s bylaws that criminalise children in street situations.
(2022) Sibisi, Sinenhlanhla.; Holness, Willene Audri.
For a little more than fifteen years, children in street situations have been a focus of concern for relief organisations, such as NGOs and governments. There are children on the streets in every country, which is an issue in both developed and developing countries. This is not unique to South Africa. Post-apartheid government was tasked to redevelop and correct the ills of the past including but not limited to matters of poverty, social development, law enforcement and inequality; through following and holding high the provisions in the constitution. Children in street situations are protected by section 28 of the Constitution of the Republic of South Africa, 1996, which extends to their best interests being paramount. This leaves the state with powers invested in them to care and protect them. However, there have been criticism rising about lack and/or inadequacy in eThekwini Municipality bylaws that criminalise these children. Their approach highlights negligence and a shortfall in policy and strategy formulation meant to protect, care and manage homelessness and children in street situations in their city. The perception created by the bylaws is that children in street situations are a “nuisance, vagrants, criminals” and so forth. This categorisation and stigmatisation is in conflict with children’s rights inter alia in the Constitution, the Children’s Act 38 of 2005, the African Charter on the Rights and Welfare of the Child, and the United Nations’ Convention on the Rights of the Child. This study unpacks the eThekwini Municipality’s bylaws in relation to children in street situation and finds that it fails to care and protect these children in line with its local government obligations. The study draws on principles established in case law, advisory opinions, soft law and treaty obligations, particularly that of the African and Inter-American regional legal systems. Recommendations are made to help align policies, bylaws and strategies to speak children’s rights and state obligations.
Public protector or paper tiger? personality, politics and performance: an analysis based on precedent.
(2021) Kisten, Reece Renae.; Hulme, David Haigh.; Pete, Stephen Allister.
Since the inception of the post-Apartheid era, the Public Protector has found its root of empowerment in legislation (the Constitution and the Public Protector Act), which primarily constructs it as an independent and purpose built watchdog. According to the Public Protector Act, the “Public Protector has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to have resulted in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action, in order to strengthen and support constitutional democracy in the Republic”. This dissertation aims to examine critically the office of the Public Protector through a lens focused on incumbents to the office and the underlying circumstances of their appointments. An analysis seeking to establish whether a pattern of ineffectiveness has developed will be conducted. Further, there will be a specific focus on cadres’ deployment, which has been defined as “the appointment by government, at the behest of the governing party, of a party-political loyalist to an institution or body, independent or otherwise, as a means of circumventing public reporting lines and bringing that institution under the control of the party as opposed to the state,” and its role in adding to the ineffectiveness of the office as aforementioned. Since the inception of the office of the Public Protector, each appointed Public Protector has been closely linked with the African National Congress (“ANC”): Baqwa (ANC member), Mushwana (ANC Limpopo Provincial Executive), Madonsela (ANC member) and Mkhwebane (alleged affiliations with Zuma faction of the ANC). Save for Madonsela (3rd incumbent), each Public Protector has either made decisions that were favourable to the ANC (Mushwana and Baqwa) or made errors in their investigations that have resulted in adverse costs orders in matters that had come before the court and in findings in their investigation reports which seemed biased towards a particular faction of the ANC, if not the ANC as a whole. The aforementioned conduct naturally resulted in the office and the appointments being brought into question. Examples of such include Baqwa in respect of the Sarafina II report, Mushwana regarding the PetroSA report, and Mkhwebane in light of the Absa judgment which arose from the Bankorp report. It is the contention of the author that proper selection and appointment is indispensable for the proper functioning of the Public Protector. The influence of politics and the system of cadre deployment must be jettisoned. It is further submitted that, if these elements (politics and cadre deployment) are removed, thereafter a theory which highlights the importance of choosing the correct person for the job, namely the Human Capital theory, applied, then the result will be that the appointment of the Public Protector will be made from an appropriate and specific category of persons. As submitted by the author, the appointment of the Public Protector should be made from the ranks of the Supreme Court of Appeal and Constitutional Court judges. In terms of effecting this change to the current selection process, an amendment of section 1(A) of the Public Protector Act can be effected. This is practical as it will be unnecessary for the involvement of Constitutional Court direction to amend the Constitutional provisions, but rather a simple amendment of the said legislation. The result will be that the office will have the ability to operate in a manner as one would envisage based on the Constitution’s provisions, which will also be discussed in detail.
Seeking tenure security: an analysis of the Communal Land Tenure Bill and its purported promise to give effect to section 25(6) of the Constitution.
(2022) Deochand, Ektaa.; Pete, Stephen Allister.; Hulme, David Haigh.
Since the demise of apartheid, land reform has been one of the greatest challenges facing the democratic dispensation. Section 25(6) of the Constitution provides that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” There is currently no comprehensive legislation which gives effect to this right, despite various laws providing for some level of protection for security of tenure to a certain extent, such as the Interim Protection of Informal Land Rights Act 62 of 1997. One of the reasons for the delay in passing such legislation is the debate around the type of entity which should be selected to administer land which is communally held, and the role of traditional leaders. Traditional leaders were bolstered by the apartheid regime and have in some instances abused their powers relating to communities residing on communal land. The previous attempt to enact legislation to give effect to section 25(9) was challenged on the basis that it allowed traditional councils to assume the role of land administration committees, which could have resulted in the security of tenure of communities being diminished. In 2017 the Department of Rural Development and Land Reform published the Communal Land Tenure Bill in order to give effect to section 25(6) of the Constitution. The intended purpose of the CLTB is to provide for the transfer of communal land to communities. This dissertation will analyse the communal landholding entities proposed in the CLTB to administer communal land, particularly communal property associations and traditional councils, in an attempt to assess whether these entities would constitute a viable legal vehicle to give effect to section 25(6) the Constitution and allow for democratic decision-making relating to land use and allocation.
Truth and reconciliation in South Africa vs Gacaca Courts in Rwanda: transitional justice mechanisms, and the need for reparations.
(2021) Msane, Andile Nomvelo Fidelia.; Singh, Sandhiya.
The year 1994 will forever be earmarked as the most eventful year in the history books of both South Africa and Rwanda. For South Africa, the year represented a long-awaited transition from an apartheid and segregationist government to one of democracy. This placed an obligation on the government to restore national unity, to hold accountable the perpetrators of apartheid and to repair the victims and survivors of apartheid. The creation of the Truth and Reconciliation Commission was situated primarily on the fulfilment of these aims. More than two decades ago, while South Africa was moving away from conflict, in April of 1994. Also, in April 1994, Rwanda was emerging into an ethnically fuelled genocide in an attempt to hold the perpetrators accountable for their actions, it became apparent that the existing judicial system had been debilitated and would be incapable of handling the amount of cases before it. This led to the creation of Gacaca Courts which were tasked with the investigation and prosecution of crimes committed between 1 October 1990 and 31 December 1994. The topic of discussion was prompted by the visible failure of both governments to cater for the needs of its citizens and to address past injustices brought about as a result of the mass human rights violations. Moreover, the overwhelming lack of literature on the topic of reparations for African countries post conflict, prompted the need to look at transitional justice mechanisms and to decipher to what extent they deliver justice and peace practically, as opposed to theoretical ideals. Further, the need to call out both governments for the controversial, yet accurate claim that without the payment of reparations (which comes in many forms) justice has not been done and both governments have failed its citizens for over two decades. Finally, this topic was prompted by the effort to not only fill the gap in the understanding of reparations in Africa and within transitional justice but also an attempt to influence legislation impacted in this regard. This dissertation will look at the ways in which comparison can be made between the South African Truth and Reconciliation Commission following Apartheid and the Gacaca Courts following the Rwandan Genocide with regard to the restorative approaches employed in both cases as well how sexual violence was handled respectively. It explores the effectiveness of Gacaca Courts, the positive changes it’s made possible for the Rwandan citizens as well as its short comings. It also explores the effectiveness of the TRC as well as its shortcomings and makes a comparison between SA, Namibia and Zimbabwe on the land question. In addition to this, it will look at the practical application of reparations in the country specific context, in chapters 2 (South Africa) and 3 (Rwanda) respectively. Moreover, this paper will argue that without the reparations aspect of the countries proposals being fulfilled in its entirety, the process to justice and peace is incomplete and justice cannot be said to be done. It will also look at the forms that reparations can take as well as how that has been applied, and ought to be applied in the specific countries. Recommendations for each country are made and explained in detail in chapter 4. Two recommendations for South Africa are made in this dissertation. It is recommended that the registration period for individual reparations for the survivors of apartheid be re-opened, further, it is recommended that government deals with the land reform issues on an urgent basis. The successes of Gacaca Courts are commendable; however, the failures have been detrimental to the lives and health of the victims of genocide. It is in this breath that three recommendations are made for a more effective and far reaching operation. It is recommended that the Rwandan Patriotic Front be held accountable for the crimes committed during and after the Genocide and not be exempted from law. Further, it is recommended that government establish a compensation fund for victims and finally, it is recommended that crimes for sexual violence and sexual reproduction get special attention and crime specific reparations.
Prospect of merging the South African Human Rights Commission and Commission for Gender Equality into a single human rights body.
(2021) Koza, Zinhle Pretty.; Stevens, Clydenia Edwina.
A decade after the introduction of Chapter 9 institutions supporting democracy, the Ad Hoc Parliamentary Committee appointed to review these institutions found that all except the South African Human Rights Commission (SAHRC) are generally ineffective and have been unsuccessful in fulfilling their constitutional mandates. These failures were attributable to a range of internal issues and disputes; the most notable being the essence of their independence and how it should be weighed against both their duty to the National Assembly and their position in keeping the executive and legislature accountable. The Committee further revealed that the proliferation of these bodies diminished their effectiveness and accessibility to the public as there was confusion as to which body to approach. The SAHRC and the Commission for Gender Equality (CGE) are particularly important in this regard due to their powers to accept public complaints, make recommendations and report on human rights and issues related to gender equality. This thesis builds on the key recommendation of the Committee with a specific focus on the SAHRC and CGE. It seeks to explore how the merging of these two institutions can play an integral role in the enforcement of the Constitution by creating an environment conducive to the furtherance of fundamental human rights. The thesis argues that the interdependence and indivisible disposition of human rights suggests that a single body is best suited to resolve the barriers and disparities that impact several groups and further espouse institutional mechanisms to address human rights violations. The reality that informs the recognition of the SAHRC and CGE is that, although the former has a broader mandate to protect human rights and the latter is designed to resolve gender equality issues; both institutions are structured to reinforce constitutional democracy through promotion, protection and monitoring on the observance of human rights, and gender equality violations. Hence, an integrated human rights body, composed of the SAHRC and the CGE, with more institutional muscle and administrative capacity would achieve a broader reach that would enable it to manage more efficiently with the complaints of ordinary citizens while holding functionaries to account.
An analysis of multilingualism as an approach to language-in-education policies of the Department of Basic Education in relation to the promotion of indigenous languages as languages of teaching and learning, in accordance with section 29(2) of the Constitution of the Republic of South Africa.
(2021) Duma, Londeka Portia.; Mpya, Maropeng Norman.
The Constitution of South Africa recognises eleven official languages, nine of which are considered indigenous African languages. This recognition seeks to provide for language protection, promote multilingualism and create unity in a diverse country. Furthermore, these rights are tailored to promote the founding values of the Constitution, which are amongst others, the protection of human dignity, equality, and non-racism. The Constitution also provides for language rights that promote multilingualism in education through section 29(2) which provides that everyone has the right to receive education in any official language of choice in a public education institution where that education is reasonably practicable. Further section 29(2) provides that the state has a positive duty to ensure that this right is effectively accessible and implemented through the consideration of various reasonable educational alternatives. This dissertation will therefore critically analyse the Language-in-Education policy (LiEP) measures of the Department of Basic Education, as a measure in the fulfilment of the state’s obligation to effectively provide access to section 29(2). The purpose of this analysis is to examine whether the current language policy promotes African languages as languages of instruction. In so doing, ensuring effective access to the right to choose a language of instruction as provided for by the Constitution for all learners.
Tensions between the powers of parliament and the privileges and immunities of parliamentarians in South Africa.
(2021) Dlamini, Lunga Vulindlela.; Osman-Hyder, Munirah.
The doctrine of parliamentary privilege is a global phenomenon. It has its genesis in the English history. It came about as a result of confrontations between the monarch and Parliament. Parliamentarians fought for the right to criticize the king in Parliament and for protection against summary arrest. South Africa, like most other Commonwealth countries, inherited the doctrine of parliamentary privileges from England. The Constitution of the Republic of South Africa enshrines parliamentary privileges in sections 57, 58, 70, 71 and 117. The national legislation dealing with privileges and immunities of Parliament, parliamentarians and its members is the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act, 2004. The dissertation outlines the evolution of the concept of parliamentary privileges against the history of South Africa before the attainment of democracy. It also compares approaches adopted by British, Canadian and French jurisdictions on parliamentary privileges and further outlines the model of parliamentary privilege adopted by South Africa. The dissertation critically analyses the position of parliamentary privilege in South Africa and assesses whether it promotes free speech in Parliament. It also discusses judicial scrutiny in measuring the scope of the regulation of autonomy of the National Assembly. The scope of the dissertation is limited to the National Assembly during the 26th Parliament. It also examines whether the Privileges Act is effectively implemented in addressing the regulation of the autonomy of the National Assembly or whether the Act is used selectively as a tool by the ruling party to assert its vested interests and silence opposition in the National Assembly(NA). The dissertation examines the constitutional mandate of the office of Speaker of the National Assembly and discusses how the political affiliation to party politics adversely affects the Speaker in impartially applying the doctrine of parliamentary privilege and holding the Executive accountable. The dissertation also calls for legislative intervention to resolve the selective implementation of the law of parliamentary privilege.
Trafficking in persons living with albinism in South Africa.
(2021) Mbatha, Siphesihle Mhlonishwa.; Mpya, Maropeng Norman.
No Abstract available.
Balancing the right to peaceful use and enjoyment of private property with the right of access to adequate housing and the government’s legitimate interest thereto.
(2020) Magagula, Sithelo.; Mpya, Maropeng Norman.
In the pre-constitutional dispensation, the courts could grant an eviction order without considering the risk of homelessness to the evictees. This was possible because there was no constitutional right of access to adequate housing, and there was no law obligating the government to provide alternative accommodation to vulnerable evictees. In this context, the owner’s right to peaceful use and enjoyment of private property to the exclusion of non-owners was absolute and it trumped the interests of the unlawful occupiers. Notably, this legal framework favoured historical landowners, while undermining the historical dispossession of land which in turn impacted on vulnerable evictees’ housing interests. In the new constitutional dispensation, there is a shift away from the pre-constitutional legal framework. The eviction landscape has been transformed by section 26 of the Constitution which gives everyone the right of access to adequate housing and not to be arbitrarily evicted. Section 26 further obliges the state to take all reasonable steps to realise the right of access to adequate housing. The subsequent promulgation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) gives effect to section 26 of the Constitution. Accordingly, evictions are now qualified in terms of section 26 of the Constitution. In a situation where unlawful occupiers have no prospect of finding alternative accommodation of their own, a court may order local government to provide them with temporary alternative accommodation. Therefore, in the new constitutional dispensation the government has a constitutional duty to provide alternative accommodation to vulnerable evictees. Notably, the government has a central legitimate interest in evictions. To the extent that the government cannot provide alternative accommodation, a court may refuse to grant an eviction order or may suspend it until the government makes such provision. This new development aims to infuse the principles of justice and equity into South African eviction law by balancing and reconciling the landowners’ interests with those of the unlawful occupiers. However, this transformative development is hindered by the government’s failure to play its central role, in the sense that if the government fails to provide alternative accommodation or provides an inadequate form of alternative accommodation the eviction will be refused or delayed. As a result, the landowners’ property rights and the unlawful occupiers’ housing rights will be compromised. Ultimately, the courts’ balancing approach will be hampered. Therefore, this study indicates that the government has failed to play its central role in evictions. As such, balancing the landowners and the unlawful occupiers’ opposed interests in the context of eviction is a complex exercise. The study concludes that it is impossible to balance the relevant rights without the meaningful involvement of government.
The certification of the constitution of South Africa.
(1997) Rickard, Carmel.; Govender, Karthigasen.
No abstract available.
The use of land restitution as a means of protecting indigenous knowledge systems for the purpose of realising food sovereignty.
(2019) Raduba, Deborah.; Parker, Judy.
This mini-dissertation will explore the Indigenous Knowledge Systems and food sovereignty in light of South Africa's stance on land restitution. It will critically discuss Indigenous Knowledge Systems as they relate to food which will include farming and preservation methods, and the sustainable use of land. It will expand on the rights in question, such as the right to food in relation to Indigenous Knowledge Systems and food sovereignty. Furthermore, it will analyse the necessity of food sovereignty for indigenous communities; draw the links between preservation of Indigenous Knowledge Systems and the realisation of food sovereignty; and carefully consider whether land restitution is a suitable tool for protecting Indigenous Knowledge Systems. The mini-dissertation will do this by considering foreign jurisdictions and relevant legislation such as the Constitution of the Republic of South Africa, 1996, the Restitution of Land Rights Act 22 of 1994, the Communal Land Rights Act 11 of 2004, and the Protection, Promotion, Development and Management of Indigenous Knowledge Systems Bill of 2004. It will conclude by recommending ways in which indigenous knowledge systems can be protected by access to land.
Deconstructing section 25(3) of the Constitution: have the courts adopted a progressive approach in interpreting section 25(3): a critical study of Uys NO and another v Msiza and others?
(2020) Luthuli, Rodell Mandla.; Freedman, David Warren.
Section 25(2) of the Constitution provides that property may expropriated only in terms of law of general application for a public purpose or in the public interest, subject to compensation. Section 25(3) provides further that the amount of compensation, and the manner and time of payment, must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regards to all relevant circumstances, including, inter alia, the purpose of the expropriation (s 25(3)(e)). Academic commentators such as Du Plessis have argued that these provisions implicitly provide for compensation below market value or nil compensation (so-called “compensation without expropriation”) where the purpose of an expropriation is a constitutionally special one, such as land reform. In light of this fact, they argue further, it is unnecessary to amend section 25 to explicitly provide for compensation below market value or nil compensation (see E du Plessis “The public purpose requirement in the calculation of just and equitable compensation” in B Hoops and E Marias (eds) Rethinking expropriation law I: Public interest in expropriation (2014) at 376). While this argument was adopted by the Land Claims Court in Msiza v Director-General Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC), it appears to have been rejected, at least implicitly, by the Supreme Court of Appeal in Uys NO v Msiza 2018 (3) SA 440 (SCA). The judgment of the Supreme Court of Appeal thus appears to support the decision taken by the National Assembly to amend section 25 of the Constitution to authorise expropriation of land for land reform purposes in those circumstances identified in an Act of Parliament. The purpose of this dissertation is to critically analyse the manner in which the Supreme Court of Appeal interpreted and applied section 25(3) of the Constitution in Uys NO v Msiza.
Separation of powers in the South African context: Is there space for the political question doctrine?
(2019) Ndlovu, Nkosinathi Riddick.; Freedman, David Warren.
In a constitutional democracy the courts are usually given the power of judicial review. This power allows the courts to review legislative and executive conduct and test it against the constitution. If the conduct in question is found to be unconstitutional, then the courts can declare that conduct to be invalid. However, this power gives rise to some difficult questions and one of these is how can the courts exercises their powers without overreaching and thereby infringe the separation of powers principle. The courts have tried not to overreach their powers by adopting different approaches to judicial review. In the United States the courts have adopted a political question doctrine approach or the non-justiciable approach. In South Africa the courts have adopted the judicial self-restraint approach. Each of these will be discussed in this dissertation. The dissertation will also consider the advantages and disadvantages of each of these reviews. Furthermore, it will consider some of the criticism that have been levelled against the judicial self-restraint approach. This dissertation aims to critically examine the political question doctrine and determine whether it could contribute to the development of the South African separation of powers. However, this dissertation does not call for the political question doctrine to replace the judicial self-restraint approach adopted by the Constitutional Court.
Dignity of an ex-convict in South Africa : a critical discussion.
(2018) Nondabula, Ndiphiwe.; Osman-Hyder, Munirah.
The constitutions of many countries do not provide a clear definition of the concept of dignity. This study scrutinises the meaning of dignity and the violation of ex-convicts’ right to dignity in South Africa. Government policies place ex-convicts at a disadvantage, which may result in discrimination. The study examines section 271(4) of the Criminal Procedure Act that pertains to criminal records. It highlights inconsistencies between public policies in South Africa and international treaties as well as some provisions of the country’s constitution and offers recommendations to protect ex-convicts’ dignity and their reintegration into society.
The violation of rights of prisoners in South Africa after 1996: medico-legal implications.
(2018) Phela, Anathi.; Mpya, Maropeng Norman.
Post-1994 and following the adoption of the Constitution of the Republic of South Africa on 8 May 1996, the Constitution has since become the supreme law of the country and any conduct or law that is in conflict with its provisions is invalid. The constitution is founded upon particular values, namely, human dignity, equality and the advancement of human rights and freedoms. Amongst others, the 1996 Constitution governs the establishment and administration of prisons with the inclusion of the rights of the prisoners. This dissertation discusses how the rights of prisoners are protected including the perceived violations. Due to the high number of violations of prisoner’s rights, this dissertation will also discuss the various court decisions relating to the previously mentioned violations. The purpose of this dissertation is, to do an in-depth analysis on the protection and violation of prisoner’s ‘right of access to healthcare’ as provided in terms of section 27 of the Constitution of the Republic of South Africa. The dissertation will endeavour to expose the violations, provide an in-depth view of the extent of the violations through case studies. The implementation of the provisions of section 27 will be evaluated to determine if the prisons have been adequately protecting prisoners. In addition to the latter analysis, the prison’s shortfalls will be highlighted with the inclusion of a brief legal position in other countries. The dissertation acknowledges the existence of the prisoners’ rights, although the implementation thereof by prisons remains questionable and a source of controversy in the medico-legal sphere. The dissertation ultimately concludes that the ‘right of prisoners to access healthcare’ should be monitored on a regular basis to ensure those prisoners' rights are not constantly violated. The dissertation further concludes that the continued oversight will reduce the number of court cases and ultimately the State's resources on cases that involve the violation of prisoner's rights and thus uphold the spirit and purpose of the Constitution of the Republic of South Africa.
The best interests of whose child? : an examination of African customary law in matters relating to children switched at birth.
(2018) Jali, Samukelisiwe Petunia.; Mpya, Maropeng Norman.; Singh, Annette.
Children switched at birth present not only emotional trauma but also a legal battle for all parties concerned. Thus the story of M and Z (an African boy and girl) switched at birth in OR Tambo Hospital on August 2, 2010 elucidates this challenge aptly. This challenge plays itself within the contested legal systems being the Common law system (Western Law) and African customary law, which bears different consequences for the same event of children being switched at birth. Therefore, the research interrogates the rules of African family law, particularly those related to children and their parenthood. Equally important is African laws approach to the legal status of the parents’ vis-à-vis the children switched at birth, as well as the compatibility of this approach with the Constitution and the Children’s Act. An analysis of similar cases of children switched at birth suggests that family mediation, a practice mandatory amongst African societies, must be used in such matters rather than lengthy court battles. Consequently, the benefits of family mediation and parenting co-ordination are discussed emphasizing the use of parenting agreements in resolving conflicts in matters relating to children switched at birth.
The judicial development of African Customary Law as per section 39 (2) of the constitution of South Africa : an examination of selected case law.
(2018) Nxumulo, Nicholene Amanda.; Mpya, Maropeng Norman.
No abstract available.
A human rights analysis of posthumous reproduction in South Africa.
(2018) Shozi, Bonginkosi.; Thaldar, Donrich Willem.
Advances in the field of medicine are consistently posing difficult questions to the law and society. This is because of the propensity of these medical advances to alter the limits of what is and is not possible, and when this happens we are forced to decide on how these new medical technologies will be used. It has been said that no use of medical technology poses more challenging questions than posthumous reproduction. This is because in the past, the act of reproduction was limited to living persons. However, now persons can become parents long after they die. This study was prompted by a case that recently came before the High Court, in which a widow sought to use her dead husband’s sperm in order to have a child. The court granted her order, but did not give reasons – thus leaving the rationale behind the decision unknown. This case came before the court because, in the relevant laws, what happens to gametes and embryos after the death of the gamete provider is largely unaddressed. This study looks at the law relating to posthumous reproduction in 30 foreign jurisdictions. This investigation reveals that there is no consensus on regulating posthumous reproduction, and state positions range from highly permissive regulation based on voluntary guidelines, to highly restrictive positions enforced by statutes. In analysing how South African law regards posthumous reproduction, the study finds there are no legal barriers to posthumous reproduction in South Africa, and that human rights related to procreative liberty support posthumous reproduction. The study concludes there is a right to posthumous reproduction, based on the freedom of testation in relation to reproductive material – which our law conceives as property – and reproductive autonomy. However, there are significant gaps in the law in South Africa that ought to be addressed by legislative reform in order to accommodate the exercising of this right.
Executed in execution : discussion and suggestions regarding the immovable property foreclosure process in South Africa.
(2017) Sham, Nikhil.; Swales, Lee Jay Edwin.
The right to housing is not only important because of its socio-economic role in society – also because of our racially and socio-economically divided past. Despite the vital function housing plays, manifested in the constitutional aegis of Section 26, our legislature has failed to enact specific legislation that enunciates a tailor-made procedure and clarifies the substantive rights that homeowners should enjoy against their homes being sold in execution. Consequently, this drastic procedure which deprives often the most vulnerable of society their shelter, has been left to be mainly regulated by court rules. These rules are outdated and I assert that it certainly does not reflect the full level of protection the Constitution intended to give home owners. Due to the apparent failure of the legislature, the responsibility has fallen to the judiciary to prevent injustices from occurring. The Constitutional Court (hereinafter ‘the CC’) has had to significantly develop our law as evidenced in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140(CC) and Gundwana v Steko Development CC and Others 2011 (3) SA 608 (CC); however as the dates indicate – progress has been painstakingly incremental. Taking the 10 year period between from 2006 to 2015 statistics show that 112,325 properties in South Africa were sold in execution - over 11 000 a year. This is exponentially higher than both the United States of America and the United Kingdom over the same period of time. To exacerbate the situation, the majority of these properties have been sold below market value – with many being sold for 30% or more below their market value. Despite judicial progress being made in this field and the legislature putting forward a bill to amend the court rules progressively, reports persist of members of the public being short-changed by unscrupulous mortgagees. This study will focus on the current judicial procedure that needs to be followed for immovable property1 to be sold in execution of an outstanding and overdue debt. It will further critique the progress that has been made and suggest the progress that needs to be made. Particular attention will be paid to Section 26 of the Constitution and the way it has and should direct the realisation of the right of access to housing.
Voluntary human shields in international armed conflict : a proposal for suitable future regulation.
(2015) Nel, Marco.; Bosch, Shannon Joy.
The paper examines the international humanitarian law framework, the Geneva Conventions, the Additional Protocols thereto, and the subsequent filtration of these norms into the domestic laws and practices of states around the globe. More specifically, it looks at the status and regulation of the voluntary human shield in international armed conflicts. The current body of writing on the prevalence of voluntary human shields indicate a bifurcated application of the international laws, culminating in uncertainty for commanders during the conduct of hostilities. The paper looks at the basic principles of international humanitarian law, the prohibition on human shielding, the international law classification of a voluntary human shield, whether or not a voluntary human shield is a direct participant in hostilities, whether and how the principle of proportionality applies in cases of voluntary human shielding, whether the current regulation of voluntary human shields compliments the delicate balance sought between military necessity and humanitarian considerations, and finally looks at suggestions of a more suitable future regulation of voluntary human shields. Ultimately, the paper is a review of the current regulation with an aim to settle the uncertainty and hopefully provide clarity as to the best way forward for regulating voluntary human shields in international armed conflict.

Browse

Recent Submissions