Masters Degrees (Constitutional & Human Rights Litigation)

Permanent URI for this collectionhttps://hdl.handle.net/10413/8395

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A critical analysis of the legislative and policy response to protect transgender children in South African schools.
(2023) Govender, Tremelle.; Holness, Willene Audri.
The transgender community’s visibility has seen a global increase in the last few years. South Africa’s Constitution is praised for its progressive nature with the theme of inclusivity and equality echoed through its clauses. As institutions embodying the values of the Constitution, South African schools become pivotal spaces for fostering inclusivity and safeguarding the rights of transgender students. The study delves into the existing legal and policy landscape, evaluating its efficacy in addressing the unique slate of challenges faced by transgender children in schools. The study’s findings reveal strengths and shortcomings in the current legal and policy framework, providing insight into gaps hindering adequate protection. The analysis of South Africa’s legislative framework emphasises a need for a nuanced and comprehensive approach to address the diverse needs of transgender children with consideration for aspects of identity, mental health and social integration. This critical analysis contributes to the broader conversation on inclusivity and equality and highlights the necessity of proactive action to nurture a supportive educational environment for all students.
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.
Mandatory reporting : the legal protection of child victims of trafficking for the exploitation of child labour in South Africa.
(2014) Alpman, Phumla Nontsikelelo.; Holness, Willene Audri.
On the 29th July 2013 the Prevention and Combating of Trafficking in Persons Act 7 of 2013 (hereafter referred to as the “Trafficking Act”) was published, criminalising trafficking in persons and associated crimes as required by article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000¹ (hereafter referred to as the “UN Trafficking Protocol”), to which South Africa is a party.² One of its objectives is the provision of assistance and protection to victims of trafficking in persons through mandatory reporting provisions and through the entering of premises known or suspected to be involved in the commission of a trafficking offence or related trafficking offence.³ This thesis analyses the reporting provisions contained the Trafficking Act in relation to child victims of trafficking in persons for the purposes of labour exploitation in the domestic services sector.⁴ The study attempts to show the challenges posed by the definition of child trafficking for the purposes of child labour exploitation for the lay person required to identify and report a child victim of trafficking to the police. Firstly, an analysis of the concepts comprising the trafficking process are analysed to illustrate the layperson’s predicament in understanding child trafficking for exploitative purposes. The research then examines the reporting standard imposed on such persons in order to identify and report child trafficking and the role of public awareness and coherent guidelines to ensure and enhance identification and reporting. Lastly, an assessment is made as to whether the process associated with mandatory reporting, namely the entering into premises by the police based on a “reasonable belief”⁵ that the child’s safety is at risk or that the endangered child may be moved from those premises advances and upholds the “best interests of the child”⁶ It then concludes that the mandatory reporting provisions and the processes related to reporting promotes the “best interests of the child”. Recommendations are made to address the identified flaws in the legislation in order to ensure that the legislation is impregnable and ensures the effective protection of child victims of human trafficking. ¹ United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000 available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf accessed on 18 March 2014. ² Department of International Relations and Cooperation Republic of South Africa ‘International agreements and / or conferences signed by South Africa in relation to the youth, children and people with disabilities, particularly with regard to the United Nations and the African Union’ available at http://www.dfa.go.za/docs/2005/pq/pq2_455.htm accessed on 10 July 2014. ³ Preamble and section 18(1) and 18(4) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013. ⁴ Ibid section 18(1) (a). ⁵ Ibid section 18(4) (a). ⁶ Section 28(2) of the Constitution of the Republic of South Africa, 1996 requires that in all matters concerning the child, the child’s best interests are supreme.

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Browsing Masters Degrees (Constitutional & Human Rights Litigation) by Author "Holness, Willene Audri."