Constitutional & Human Rights Litigation

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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.
The abused women in South Africa : statutory implications and the use of mediation to resolve domestic violence disputes.
(2000) Moodaliyar, Kasturi.; Louw, Ronald.
No abstract available.
Access to antiretrovirals : are there any solutions?
(2008) Broster, Emma Justine.
In South Africa 1 000 people die of AIDS everyday and 100 000 more people require ARVs every year. There is therefore an urgent need to provide access to ARVs andother essential medicines. The South African Constitution requires the government totake reasonable measures to ensure access to health care. The government has cited financial constraints as the major ohstacle to fulfilling this constitutional imperative. In an effort to stretch their budgetary resource other medium-income countries have used measures such as compulsory licences, voluntary licences and parallel importation. These measures, provided for in the TRIPS Agreement and the Doha Declaration, are available under South African legislation but have not been properly implemented due to a lack of political will. The proper use of compulsory licences by the South African government is vital because all twelve of the ARVs on the World Health Organisation's Essential Medicines List are protected in South Africa by our patent laws. However, in order to issue compulsory licences more easily and quickly the South African Legislature will need to pass legislation which clarifies the ambiguities contained in TRIPS and the Doha Declaration. Other methods to lower the price of medicines include the segmentation of the South African market in order to facilitate differential pricing. The State must balance its use of such measures with programmes to incentivise research and development into neglected diseases and HIV/AIDS. Such programmes will also assist the State's capacity to conduct its own research and development into new medicines, whilst bolstering its domestic pharmaceutical manufacturing capacity. The ultimate solution to South Africa's access to medicine problem is to create a pharmaceutical manufacturing industry capable of producing the most complex medicines, so as to lessen its dependence on drug manufacturers reducing their prices. The way to create a sophisticated pharmaceutical manufacturing capacity is to use the flexibilities in TRIPS and to uphold South Africa's high patent standards. The Constitutional Court's involvement is essential in order to force the State to implement its own policies so as to provide access to affordable medicines.
African customary law : a constitutional challenge for gender equality.
(1999) Govender, Anneline Michelle.; Perumal, Devina Nadarajan.
No abstract available.
The African Union and human rights : drawing from the European experience of human rights supervision, what impact might the African Union, and the consequent creation of an African court, have on Africa with regard to human rights, African unity, and the issue of state sovereignty?
(2003) Bodasing, Anshal.
The formation of the African Union (AU) holds great promise for Africa with regard to development. It also brings a new dimension to human rights in Africa, with the creation of the African Court. However, the OAUs legacy of human rights supervision and the development of democracy lacks in many areas. Europe, however, has manifested itself into an entity capable of trans-border cooperation and has been able to sustain this over a long period of time. What the OAU has accomplished in this regard is not compatible with the current status of international law theory and practise. There is a need then for change in these areas, and what better opportunity is there, than for a new dispensation in regional governance to apply to relevant policies and programmes to effect this change? This dissertation will endeavour to present a study of how the European legacy in Africa worked to the latter's detriment over the past five or six decades since decolonisation. Yet, there are lessons that may be learnt from Europe's unification that can be successfully implemented in Africa. Further, by analysing the weaknesses of Africa's current system of human rights supervision, and rectifying or reforming them, much may be accomplished in the advancement of the system. Therefore reformation of the system will be discussed at length. However, the success of the system will be evidenced by the commitment of its component members. Thus far the status quo in Africa reflects unwillingness on the part of the state to surrender its sovereignty. This was one of the reasons for the impotence of the OAU. Will the AU be able to overcome this condition? The onus remains on the state to shore up their commitments to the treaties which they have ratified, and to deliver on the promises they have made, because there are solutions, and whether or not they are implemented ultimately depends on the AU.
The African Union and its radical stance towards human rights and democracy.
(2003) Msimang, Tobias Thobani.; Mubangizi, John Cantius.
Any research that attempts to tackle the issue of human rights in Africa is likely to raise emotions because of the history of perpetual human rights violations in the region. Nevertheless, the establishment of the African Union (AU) brings hope that Africa has turned the corner. The provisions of the preamble, objectives and principles of the Constitutive Act of the African Union are crystal clear. Article 3 (h) of the Act makes a critical provision in terms of human and people's rights. (See appendix 1). Paradoxically, this article recognizes the African Charter on Human and Peoples' Rights, which led to innumerable inconsistencies in enforcing human rights under the Organization of African Unity (OAU) (See appendix 2). By implication, the recognition of the 'Charter' justifies its existence in the new African human rights set up. The 'Charter' historically introduced the concept of peoples' in the definition and application of human rights in the African region. This further complicated the concept of human rights, and made it difficult to enforce them. As a result, the dichotomy between human rights and peoples' rights practice in the African region became difficult to reconcile. Hence, the concepts became vulnerable to abuse by governments, who justified their violation of individual human rights for the benefit of peoples' rights. The above assertions hold true for the ailing African region that has evolved from a defunct OAU regime into the radical African Union human rights corpus. The dissolution of the OAU on 9 July 2002 during the last 38th ordinary session of the OAU Assembly in Durban, and the subsequent launching of the AU on the same occasion pioneered a new era for human and peoples' rights approach in the African region. The shift from the toothless-human-rights-system to a clear-visionary-human-rights-regime is an articulation of the desire and commitment to transform the African region. This study therefore reviews the pattern or system that the AU has employed in transforming human and peoples' rights in the African continent. Chapter two attempts to assess the prospects of the African Union to bring reforms in areas of human and peoples' rights, the rule of law, good governance and so on. A comparative analysis of the African Charter on Human and Peoples' Rights and the Constitutive Act of the African Union is drawn from the key clauses, objectives and intentions of the two human rights regimes. Chapter three presents an analytical comparison between the African Union and the European Union. The chapter documents the historical developments of the European Union to illustrate how far the African Union has to go to ensure long lasting peace and stability in the region. The discussion in this chapter acknowledges the differences in these two regions, but uses the European Union to draw some lessons. In so doing the study reviews the historical developments of the union of states that has advanced itself in critical areas of democracy, human rights, good governance and so on. Hence, the chapter recognizes the remarkable accomplishments of the African Union in the last five years. The parity of judges in the AU Commission, the commitment of 53 African nations to adopt and ratify the Constitutive Act of the African Union in record time, the establishment of the New Partnership for Africa's Development, the introduction of the African Peer Review Mechanism and the peace-keeping missions in Liberia, Democratic Republic of Congo and so on are among the achievements of the Union in the last few years of its existence. In an attempt to justify the radical shift of the African Union from the OAU past, chapter four discusses the establishment of the African Court on Human and Peoples' Rights. Even though the idea of establishing a Court of justice emanated from the OAU decades after its existence, the chapter acknowledges the radical stance of the African Union to put in place a 'Court' from the beginning. The chapter further looks at the structure of the 'Court' in terms of its composition and election of judges, court procedure, court judgments and their execution and its relationship with the African Commission. In making recommendations and drawing conclusions, chapter five makes a strong point that the pre-requisite for stability and prosperity in the African region is through transforming and consolidating national institutions into democracy. The chapter also acknowledges the continued existence of the African Charter on Human and Peoples' Rights, but raises a concern that its existence is subject to abuse by non-democratic governments. The chapter concludes the study by drawing an inference that indeed the African Union represents a radical shift from the OAU in terms of promoting and protecting human and peoples' rights. However, the study acknowledges that the African Union will take some time to fully bear the benefits, but its efforts so far are worth the accolades.
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.
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.
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 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 certification of the constitution of South Africa.
(1997) Rickard, Carmel.; Govender, Karthigasen.
No abstract available.
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.
A comparative analysis of the practice of family mediation with particular reference to African customary mediation.
(1997) Mkhize, Petros Bonginkosi.; Mowatt, James G.
Family mediation is a process that' was and is still practised by African indigenous societies. However, mediation in relation to family and divorce matters, is viewed either positively or negatively by most South African writers mainly from a Western perspective. The recommendations made in this work focus, amongst other things, on what ought to be done by policy makers and exponents of mediation in order to make the ,benefits of mediation realised by South Africans particularly disadvantaged communities. The role of illiterate and semi-literate South African citizens)'is pointed out as being critical more in managing family disputes from disfunctioning the family and leading to marriage break-down than merely mediating the parting of ways and ancillary issues of marriage. The practice of family mediation and procedures followed by Africans when introducing the son-in-law to the daughter-in-Iaw's family and the protracted marriage negotiations between Umkhongi (emissary) and the in-laws are all indicative of the entrenched or mandatory approach to family mediation. The benefits of the peaceful ending of marriage relationship through third party interveners are highlighted in President Mandela's desire to terminate his marriage as 'painless as possible' particularly for the sake of children. It is pointed out in this work that the Bushmen of the Kalahari Desert still adhere strictly to their tribal mediation procedures both in relation to family disputes and disputes in general. The tribe relies highly on korakoradue who is its senior citizen and respected elder, as resolver of community disputes. III The South African Justice Department brought hope when it worked toward introducing divorce mediation legislation. However, the vision was misdirected as the enacted family mediation legislation turned out to be constraining in its operation contrary to the recommendations by the Hoexter Commission. The majority of destitute South Africans who should be benefiting from this legislation end up not knowing about the existence of the Act and/or not making use of it because of the costs involved as only the Supreme Court can adjudicate upon matters covered by the Act. The lack of research which focuses on local mediation styles makes it difficult to justify, for example, either Mrs. Mandela's claim when she said ,Mr. Mandela had not answered to the 'African Cultural and Traditional Inkundla' or Mr. Mandela's defence that he respects customs but is not a 'tribalist' as he 'fought as an African Nationalist with no commitment to any tribal custom'.
The concept of family courts in South Africa.
(1981) Schafer, Ivan Derrick.; Olmesdahl, Michael C. J.
No abstract available.
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
The constitutional experience of Zimbabwe : some basic fundamental tenets of constitutionalism which the new constitution should embody.
(2013) Mhodi, Peacemore Talent.; Govender, Karthigasen.; Stone, Lee.
Zimbabwe adopted the Lancaster Constitution in 1980. This constitution has been amended a record nineteen times. The critic on some of the amendments is that they have undermined the fundamental tenets of constitutionalism. Therefore, in the light of the fact that the tide of constitutionalism is sweeping throughout Africa, the dissertation critically evaluates the extent to which the Lancaster Constitution subsumes the basic tenets of constitutionalism. This evaluation is precipitated by the fact that Zimbabwe is currently grappling with drafting a new Constitution. Through this evaluation the inescapable conclusion is that the Lancaster Constitution merely provides a veneer of constitutionalism. Drawing from the constitutional experience of Anglophone African countries which include Botswana, Ghana, Lesotho, Malawi, Namibia, South Africa and Zambia; the dissertation offers some reforms which the drafters of the new constitution could include in the envisaged constitution. It is argued that it is only after a constitution embodies the identified fundamental tenets of constitutionalism that it becomes worth the paper it is written on.
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.
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.
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.
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.

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