Doctoral Degrees (Law Multidisciplinary)

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    Developing and applying a constitutional rights-based approach to the regulation of the modifiable risk factors for noncommunicable diseases in South Africa.
    (2022) Karim, Safura Abdool.; McQuoid-Mason, David Jan.
    Non-communicable diseases (NCDs) caused by unhealthy diet, contribute significantly to South Africa’s burden of disease and are preventable. Policies and laws offer an evidence-based mechanism improve diet and prevent NCDs. However, the adoption of these measures is complex, often facing opposition from many actors. To address these challenges to the adoption of these interventions, scholars have looked to develop human rights-based (HRbased) approaches to the prevention of obesity and diet-related NCDs. These approaches have the advantages of supporting and guiding government action on NCDs, holding various actors accountable and providing a means to manage the competing rights implicated in NCD prevention efforts. However, to fully realise the benefits of an HR-based approach to NCDs, there is a need to anchor the approach in context-specific rights married with concrete and enforceable obligations. This thesis seeks to develop an HR-based approach to NCDs under the rubric of the South African Constitution. Often the right to health or the right to food can form the basis of an HR-based approach to NCDs. However, the peculiarities of section 27 of the Constitution require that the content of these rights be further developed to encompass NCD prevention, particularly where the interventions sit outside the healthcare system and are not biomedical in nature. This thesis explores and develops the content of the right to healthcare and the right to sufficient food to identify obligations that could support action on NCD prevention. Recognising that NCD prevention interventions may limit individual rights, this thesis then explores the relationship between public health and HR through the lens of colliding rights and section 36. Since many NCD prevention interventions may be novel, there arise implications for the section 36 limitations analysis. This thesis therefore addresses the application of section 36 analysis to novel NCD prevention interventions, outlining the kinds of considerations influencing whether the limitation of rights by a public health intervention can be found to be justifiable. This thesis with recommendations on how this HR-based approach may be used in South Africa to prevent NCDs.
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    Transformational leadership as a tool to effectively implement the legislation governing disability in the workplace: the case of eThekwini Metropolitan Municipality.
    (2019) Nxumalo, Lindani Goodman.; Mutambara, Emmanuel.; Holness, Willene Audri.
    The South African government has enacted various labour laws intended to transform the country to empower previously underprivileged South Africans to enjoy equal access and fair treatment in the workplace. This legislation includes provisions aimed at promoting respect for the human rights for persons with disabilities and to guarantee their protection afforded by the Constitution. The challenge, however, lies with implementation of the legislation and disability policies. While there has been a principled undertaking, confirmed at least on paper in government policy and legislation, to include persons with disabilities in mainstream society as autonomous and full members with dignity and opportunities, such opportunities remain restricted, and human ability and dignity are stifled thereby compromised. In terms of the Disability Code and labour legislation, the duty to manage execution of the Code and disability related legislation is the responsibility of workplace leaders, ie the senior management of the organisation. It follows that failure to implement disability related laws by senior management means that persons with disabilities will remain excluded in the workplace. This study explored the role of transformational leadership in the implementation of disability law in the workplace particularly in the public sector. It further examined the role of transformational leadership on disability inclusion and equality in the Ethekwini Municipality (the Municipality), Durban, South Africa. Additionally, the study investigated obstacles hindering effective implementation of disability law in the Municipality. The study is multidisciplinary in that it incorporates leadership (management studies) and the law. In this context, the study is empirical in nature based on qualitative interviews with employees with disabilities and senior management (leaders) of the Municipality responsible for developing strategies and implementation of disability related legislation, to ascertain their perspective on transformational leadership and its impact on disability inclusion in the workplace. The assertion is that it is the role of the workplace leaders to guarantee effective implementation of disability laws in the workplace. Consequently, the study explored obstacles faced by Municipal leaders towards effective implementation of disability laws. Furthermore, the study utilised doctrinal (legal) research by examining international and domestic instruments on disability. The study applied a socio-legal approach to analyse the law and to understand the social impact through the interviews conducted with leaders and employees with disabilities. Thus, the socio-legal approach complements both the doctrinal and the empirical research methodologies. Among the findings of the study is that there is a lack of leadership commitment and political will to include persons with disabilities in the Municipality. Additionally, conflicting understandings of the concept of disability and the lack of disability policies and strategies were found to be among the hindrances to disability inclusion and equality in the Municipality. There is a stigma attached to persons with disabilities and the working environment is not conducive for them. Disability is not a priority issue, it is merely considered for compliance with relevant laws and targets and not to ensure their full inclusion in the Municipality. Notably, this study found that transformational leadership is an important leadership approach to adopt to include and promote full participation of persons with disabilities in the workplace and to ensure an inclusive workplace culture. The study recommends transformational leadership models that can be utilised by the Municipality to change the status quo and to transform an exclusionary workplace environment to the one that promotes inclusion of and full participation by persons with disabilities in all occupational levels in the Municipality.
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    Non-pathological incapacity : reassessing the defence of provocation and emotional stress in South Africa.
    (2015) Maharaj, Sandhya.; Hoctor, Shannon Vaughn.
    The relationship between provocation and the criminal law can be categorised as a necessary but troubled union. Historically, anger was considered as a ground mitigating punishment in Roman law with the law distinguishing between crimes that were committed on impulse and those that were committed with premeditation. This attitude continued into the Middle Ages; however, anger was considered as a complete defence in certain circumstances. The attitude of the Roman-Dutch writers was that anger could only be regarded as a factor mitigating punishment in cases where the anger was justified and was not a ground which excluded capacity. . Since 17th century English law, provocation has been recognised as having an impact on the criminal liability of the accused who killed while ―passions were aroused‖. Serious crimes such as murder, committed while in a state of anger brought on by serious provocation were considered less serious than those commited in ―cold blood‖ or with premeditation. Historically, the basis for this leniency is rooted partly in the need for the concession to human frailty in cases where provocation leads to a loss of self-control. This basis for a defence of provocation continues in jurisdictions such as England and Canada. However, despite this leniency, the general approach in jurisdictions such as England and Canada is that a provoked act cannot excuse the agent from criminal liability completely, but only partially, as fundamentally, individuals are expected to exercise control over their emotions and their actions. Achieving this balance between the recognition of human frailty and enforcing a standard of acceptable behaviour in society, is where the controversy in jurisdictions such as England and Canada emerges. On this fundamental level, the provocation defence emerges as one of the most contentious defences in modern times and has remained that way for many years in jurisdictions such as South Africa, England and Canada. The dilemma in England and Canada centres around ensuring that there is room for a concession to human infirmity on the one hand, while simultaneously ensuring that unacceptable standards of behaviour are not condoned by the law. An important basic principle in most modern v legal systems is that acts of vengeance, which are argued to be the main motivation behind retaliation to provocation, should not only be discouraged but punished. It is due to these considerations of policy that the provocation defence in England and Canada exists only as a partial defence to murder. This approach is in stark contrast to the approach in South African law, where the law during the past quarter of a century, has gone far enough to allow provocation and emotional stress to operate as a complete defence. This dynamic approach is based on the psychological or principle-based approach to criminal liability which is based on the legal principle that unless an individual possesses the capacity or the fair opportunity to regulate his behaviour in accordance with the requirements of the law, the consequences of his behaviour should therefore not apply. The formulation of this innovative approach has been the source of debate which has focused on the purely subjective test for criminal capacity. The defence of nonpathological incapacity due to provocation and emotional stress has occupied an important role in South African criminal law as it accommodates those individuals who kill out of anger, emotional stress, fear, shock and emotional collapse provided that the accused did not possess criminal capacity at the time of the killing. The principle-based approach to provocation and emotional stress, though logical and in line with interests of justice and fairness has been under scrutiny since its development with commentators arguing that the defence of non-pathological incapacity due to provocation and emotional stress is inherently problematic and should, primarily on grounds of policy, be limited to prevent the ―hot-head‖ from being acquitted. This point has been argued by commentators in South Africa who believe that South African law should align itself with Anglo-American systems who take a more stringent stance in relation to provocation. It is with these arguments in mind that the notorious leading case of Eadie is assessed. It was hoped that the case of Eadie would provide much-needed clarity and offer a solution to the problem of perceived facile acquittals. It is submitted that the Eadie judgment failed in both respects. The study assesses this judgment and the reasons for its deficiencies. At present, the defence of of non-pathological incapacity due to vi provocation and emotional stress is in a state of limbo as confusion and controversy dominate. The cause of this disarray has emanated from the notorious landmark judgment by the Supreme Court of Appeal in Eadie. The Eadie judgment has brought about drastic and far-reaching repercussions to the criminal law to the extent that the defence of non-pathological incapacity due to provocation and emotional stress may have been abolished. The judgment itself has had varied interpretations with some academics welcoming its pronouncements, while others have being critical of certain aspects. This study considers the various interpretations and opinions put forth by academic commentators of the Eadie judgment in order to assess the precise significance of the exact import of the Eadie judgement and whether the changes made in this controversial case are warranted. Furthermore, this study evaluates and critically assesses the basis and justification for the defence in South African criminal law. In achieving this aim, the landmark judgment of Eadie is assessed to determine the extent to which the judgment goes in revising the traditional approach of the courts to provocation and emotional stress. In achieving the goal of this inquiry, which is to re-assess the defence of nonpathological incapacity due to provocation and emotional stress, the development of this defence was traced in South African law to determine if a coherent rationale exists underpinning the defence. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform in light of the controversy and criticisms attacking the inherent nature of this defence. Furthermore, a comparative analysis is conducted with the respective provisions governing the provocation defence in Canadian law as well as English law, which is one of the common-law parent systems of South African law. It is important to gain an understanding of the basis of the defences in each jurisdiction; therefore, the origins of the defence of provocation in each jurisdiction are traced. The comparative analysis seeks to determine whether the approach to provocation in these jurisdictions is preferred to the principled approach in South African law and vii whether South Africa should place a greater emphasis on policy considerations in its treatment of provocation. Should South African law follow England and Canada by limiting the defence to a partial one the critical analysis of the different approaches will aid in identifying the pitfalls inherent in adopting aspects of these alternative models. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform. In tracing the development of the law in South Africa, a historical survey of South African law and the development the defence of non-pathological incapacity due to provocation and emotional stress reveals somewhat of a turbulent past. Due to the differing influence of different parent systems of law, namely Roman and Roman-Dutch on the one hand and English law on the other, South African law took time to formulate its own unique approach to provocation. Emotions such as anger were historically never considered a complete defence to a killing in South African law. From this standpoint, the law moved on from considering the effect of provocation on criminal intention which was objectively assessed. Ultimately, the law progressed to a stage where intention is assessed subjectively as the focus fell on the state of mind of the accused. These developments eventually led to the re-assessment of the approach to provocation. The Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, popularly known as the Rumpff Commission Report was highly influential in popularising the notion of criminal capacity which was subjected to investigation by the Commission. The recommendations of the Commission gave rise to s 78(1) of the Criminal Procedure Act of 1977 which governs mental illness. However, the test formulated was extended to encompass non-pathological incapacity. The Rumpff Commission Report identified two essential components of criminal capacity that is cognitive and conative capacity. The concept of self-control was defined in the Rumpff Commission Report. The popularization of this notion of criminal capacity eventually changed the landscape of how provocation and emotional stress is treated today. The emergence of the doctrine viii ―toerekeningsvatbaarheid‖ or criminal capacity marked the broadening of the defence which began towards the latter part of the twentieth century when it was accepted that factors such as intoxication, emotional stress and provocation could in circumstances impair criminal capacity. These factors are not the cause of a mental defect, thus the notion of non-pathological incapacity was developed. The courts recognised that criminal incapacity could result from non-pathological causes and the defence of nonpathological incapacity based on provocation and emotional stress emerged. Notably, the Rumpff Commission identified a third category, that of affective functions, which govern an individual‘s feelings and emotions. Provocation and emotional stress are categorised as affective functions, the Rumpff Commission cautioned against allowing affective functions excluding criminal liability in cases where volitional control and insight were present. Despite this warning South African law has allowed affective functions to impinge upon the inquiry into criminal capacity where cognitive or conative functions are affected. The case of Laubscher set out the classic two-stage test for the defence of nonpathological incapacity, which is: (1) the ability to distinguish between the wrongfulness or otherwise of his conduct, (2) the capacity to act in accordance with such an appreciation. The Laubscher case provided a theoretical framework for the defence and stated that in terms of legal principle, non-pathological incapacity could lead to an acquittal; the defence of non-pathological incapacity gained an autonomous independent existence from the defence of pathological incapacity. The court emphasised that in order for an accused to be criminally accountable, the accused‘s mental faculites must be such that he is legally to blame for his conduct. The law distinguishes between conduct which is uncontrolled and that which is uncontrollable; it is uncontrolled actions which attracts criminal liability as the conduct is blameworthy. In the last two decades, the law‘s treatment of provocation and emotional stress has undergone major development with the defence of non-pathological incapacity due to provocation and emotional stress becoming a legitimate, fully-fledged defence. However, a controversial aspect of the provocation defence in South African law is the fact that criminal capacity is completely subjectively assessed. ix There have been certain contentious acquittals in cases such as Arnold, Moses and Nursingh which further fuelled debate on the acceptability of a defence based on provocation and emotional stress and highlighted the risk of facile acquittals. However, the acquittals in these cases unearthed problems relating to application of principle rather than the principle itself. In each case the presence of a series of goal-directed acts on the part of the accused indicated the presence of conative capacity, volitional control and insight on the part of both accused were present therefore indicating that capacity was not lacking. It is submitted that these cases were wrongly decided which consequently brought the defence of non-pathological incapacity due to provocation and emotional stress into disrepute. However, it is clear that the acquittals in these cases were a direct result of failure of the courts to properly apply the fundamentals of the defence to the facts. A significant feature of Nursingh is that the prosection did not lead expert testimony to rebut the expert evidence led by the defence. In Arnold, the State did not lead expert psychiatric evidence either in support of its case or challenge the opinions of the evidence led by the defence witness. This may have created an unbalanced view for the court. In an attempt to bring clarity to this area of the law and to quell public outrage arising from the acquittals in Arnold, Nursingh and Moses, the court in Eadie effected fundamental changes in the form of a policy brake to the principles underpinning the defence of non-pathological incapacity, which, in a drastic turn of events, has led to uncertainty regarding whether the defence of non-pathological incapacity still exists. There are two major difficulties arising from the Eadie judgment. First, there is undoubtedly the court‘s conflation of the defence of non-pathological incapacity with the defence of sane automatism; the ramifications of this conflation are tremendous and far-reaching. It is submitted, with respect, that the court in Eadie has demonstrated a failure to understand the distinct attributes and purpose of both defences of nonpathological incapacity and the defence of sane automatism. In terms of legal principle, there is a distinct difference between making a decision and having the ability to execute the decision. A person may be capable of voluntary conduct but may lack the x ability to set goals and may not have the ability to pursue these goals or to resist impulses to act contrary to what his insights tell him is right and wrong. In addition, the subjective test for capacity is substituted by the objective standard in the form of the test for sane automatism. The result is that the test for voluntariness occurs twice, firstly to determine if the accused acted voluntarily, and secondly once cognitive capacity is determined, in lieu of the test for conative capacity. This new development results in unnecessary duplication and complication. This amounts to the integration of a totally different defence, sane automatism, into the defence of non-pathological incapacity. Hence the test for capacity is defeated and thus becomes redundant. The conflation of the two defences creates difficulties not only in application, but the presence of automatism also erodes the test for capacity; there is a clear misunderstanding since the lack of capacity does not necessarily mean voluntary conduct is not present. The rejection of the difference between the test to determine voluntariness and the test for conative capacity will lead to the basic concepts of criminal liability losing their significance. Furthermore, the negation of the existence of the defence is detrimental to the criminal law system as it results in the partial elimination of the element of criminal capacity. It is submitted that the defence serves an important need in society and erosion of the defence is not in the interests of justice as it deprives individuals such as the battered woman of a defence; it is submitted that victims of abuse who kill their abusers stand a greater chance of succeeding when pleading non-pathological incapacity due to provocation and emotional stress. The second major problem with the Eadie judgment relates to the introduction of an objective test into the inquiry for criminal capacity. There have been proposals by academics to bring South African criminal law in line with other jurisdictions in AngloAmerica by incorporating an objective test into the defence, mainly to prevent abuse of the defence. However, it is submitted that this study has revealed that the incorporation of an objective test is not only unnecessary, but will be detrimental to the proper functioning of the defence, as there are clear problems concerning the application of an objective standard in the form of a reasonable or ordinary person. xi This conclusion can be deduced after analysing the results of the comparative analysis. Jurisdictions such as Canada and England have a strong bias for the use of an objective test which is considered to be an essential safeguard within the defence. The model of the reasonable man or ordinary person is favoured to determine if the reasonable man would have lost control in the same way as the accused. There is difficulty in deciding what attributes to assign to the fictional reasonable/ordinary person. This has led to inconsistent judgments and confusion in both England and Canada. The objective test is arguably one of the most problematic aspects of the provocation defence in England and Canada. There is a common problem of interpretation and application of the objective test. The difficulties associated with the objective test was one of the main problems identified with the now abolished provocation defence in terms of section 3 of the Homicide Act of 1957. Clearly, England and Canada have struggled with creating a balance in respect of the problem of accommodating human weakness while simultaneously ensuring that a person‘s right not to be killed by enraged individuals is protected. This delicate balance has seemed elusive and almost impossible to achieve. This indicates that fundamentally, that the rationale for the objective test is flawed and application of this rigid standard is practically unworkable since the courts are unable to effectively apply a stringent objective standard; a just and fair result cannot be obtained especially considering the nature and differing effects of provocation on different individual. This strongly indicates that the use of an objective test in trying to uncover what was going on in the mind of a human being is fundamentally illogical and application of this standard will be difficult to interpret and to apply to the facts, besides being extremely unfair and unjust. The use of ―reasonable man‖ or the ―ordinary man‖ to determine acceptable behaviour has been justifiably described as ―oxymoronic‖. In light of the introduction of an objective test in Eadie, it is submitted that the use of an objective test within the defence of provocation constitutes an unjust imposition of dominant cultural values. This criticism is key especially in light of the history and xii racial and socio-economic diversity in South Africa, furthermore, social and economic backgrounds may differ immensely from person to person and it is unfair and unjust to apply a uniform standard which cannot take cognisance such differences. Furthermore, it is correctly argued that an objective test subverts the principle upon which the concept of justification on which the criminal law is based, that individuals are autonomous moral agents who possess the right to freedom of action, therefore it is in light of this principle they are held responsible for their actions. Therefore, in terms of this argument the introduction of an objective test for conative capacity can be subjected to constitutional challenge for unjustifiably infringing on the right to dignity, granted by section 14 of the 1996 Constitution, furthermore, the right to freedom and security of the person in terms of section 12(1) (a) of the 1996 Constitution. The comparative analysis has revealed that there are other problems with the provocation defence in England and Canada. The restrictive nature of the defence in both jurisidictions have led to problems of gender discrimination by not encompassing persons such as the battered woman. The requirement of loss of self-control is a large part of the problem in both England and Canada since it is predicated on the angered states and is dependent on the ―eruptive‖ moment. This leaves little room for other causes of loss of self-control such as fear, thereby automatically excluding cases involving cumulative provocation from the ambit. A coherent rationale for the defence in England and Canada does not exist and there is debate regarding whether the defence is a justication or an exuse. This is the cause of the problem as in terms of policy, the actions of an accused can neither be partially justified or partially excused, since a degree of blameworthiness exists. Though the current defence in England has undergone reformation and now accommodates loss of self-control emanating from fear, the new provisions may still prove problematic, as fear and loss of self-control in English law may be incompatable as killing arising out of fear usually lacks the traditional eruptive moment. The notion of self-control in the respective defences is flawed and is the primary cause of gender discrimination against abused persons such as the battered woman in England and Canada. xiii It is argued that the defence of non-pathological incapacity due to provocation and emotional stress in South Africa has avoided these problems for several reasons. Firstly, there is a solid theoretical framework underpinning the notion of loss of self-control which derives much of its content from the Rumpff Commission Report, and the case of Laubcher which provides guidance on the application of the test for capacity. The recognition of affective functions causing lack of criminal capacity in South African law has brought persons such as the battered women within the scope of the defence and has avoided the problems relating to gender discrimination, therefore it is submitted that this was a positive and forward-thinking development in South African law. Therefore, it is submitted that the Eadie judgment is problematic on several levels and has brought tremendous confusion and uncertainty to the defence of non-pathological incapacity due to provocation and emotional stress. Judicial intervention is necessary in order to bring clarity and restore the defence of non-pathological incapacity due to provocation and emotional stress in terms of the two stage test delineated by Laubscher by over-ruling Eadie. It is submitted that the fears of easy acquittals are unfounded, proper application of the established principles governing the defence are adequate safeguards for preventing facile acquittals. However, there is one short-coming of the defence, this relates to the uncertain role of expert evidence. It is submitted that analysis of South African case law reveals that there is lack of clarity regarding the role of expert evidence in cases involving non-pathological incapacity due to provocation and emotional stress. There is uncertainty surrounding the necessity of the expert testimony, though it has been stated that the success of the defence is unlikely if expert testimony is not led in support of the defence. Due to the nature of this defence, which may involve killings arising from trauma, especially when abused persons are involved such as the battered women, the law should be reviewed with the view of making referrals for psychiatric evaluation and counselling mandatory. Providing a structure regulating expert evidence will assist in ensuring that case law is consistent. xiv Furthermore, from the assessment of case law it is clear that an imbalance of expert evidence on the part of the prosecution may deprive the court of a balanced view and result in inconsistent case law. Thus, it is proposed that expert testimony should be mandatory. This, according to Burchell, will ensure that the court obtains a balanced, well-informed view, which will work to prevent facile acquittals and ensure consistent outcomes of cases. The defence of non-pathological incapacity is lacking in this respect; consultation and review of this area is required with the view to formulating a structure that could form part of the provisions of the Criminal Procedure Act of 1977. Furthermore, it has correctly been argued by Burchell that expert evidence should be led after evidence relating to the accused‘s version of events has been heard. Expert witnesses would thus have an opportunity to re-evaluate their evidence after hearing the facts of the case as well as hearing the accused‘s version being tested at crossexamination. This is important since the psychiatric evidence is largely based on the cogency of the accused‘s version of events. It is submitted that these proposals will ensure that established principles which were eroded by Eadie are restored while addressing a clear void in respect of the lack of clarity and framework delineating the role of expert testimony. The defences in both England and Canada are based on the misguided need to accommodate human frailty and predicated on the problematic concept of loss of selfcontrol which favours angered states, there this concept lacks effective content. This is the reason that determining the rationale for the partial defence in both jurisdictions has proved tricky. The defence in both England and Canada falter in this respect. It is submitted that it is unwise to adopt the foreign models of the provocation defence such as the English and Canadian model. The defence of non-pathological incapacity is a simple formulation which lacks the unnecessary complexities and unfair rigidity of both the English and Canadian codified provisions. A coherent rationale exists which provides for a solid basis for providing an acquittal based on blameworthiness.
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    Harmful cultural and traditional practices : a roadblock in the implementation of the convention on the elimination of discrimination against women and the Maputo protocol on women's rights in Tanzania.
    (2017) Msuya, Norah Hashim.; Ntlama, Nomthandazo.
    The focus of this study was largely on the effect of harmful cultural beliefs and practices regarding women’s rights as enshrined in international, national and regional legal instruments that apply to the Tanzanian legal framework. The study examined and provided an overview of relevant aspects of existing culture and traditions that were found to be in conflict with the provisions of Tanzania’s Constitution and domestic legislation. In light of the findings, there is an urgent need for the reform of various legislations in order to adhere to the resolutions of the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Maputo Protocol. A literature review was conducted to analyse the judicial decisions in Tanzania and other African countries in terms of the domestication of international human rights instruments that protect the rights of women through due process of judicial review. This undertaking was underpinned by the prime purpose of this study which was to analyse the impact of culture and traditions on the implementation of CEDAW and the Maputo Protocol in the Tanzanian context. The study revealed that some cultural beliefs and traditions in Tanzania continue to subordinate, discriminate against and harm women in the context of family, clan and community life. The values that are entrenched in customary law practices are used to justify the violation of women’s human rights. Many cultural practices that subject women to abuse continue to prevail despite the existence of appropriate domestic legislation that prohibits such practices. This study discovered that several discriminatory laws that negatively impact women’s rights are still enforced in Tanzania and that intentions to amend these laws and to remove discriminatory provisions have been hindered by strong traditional resistance. It was also established that, notwithstanding the provisions of international human rights instruments and the Constitution of the United Republic of Tanzania, which clearly prohibits any form of discrimination through the recognition of the equality of all human beings and guaranteeing equality and protection of all before the law, some judges still do not find it unjust to make decisions based on discriminating legislation. Rather, these judges choose to make decisions based on harmful customary rules without consideration of human rights principles that are enshrined in the country’s Constitution. In these circumstances, they persist in presenting divergent views on the interpretation of the rules. 214585778 Based on the findings of this study, it is argued that, in order for customary practices to make any meaningful impact of the lives of women in Tanzania and in Africa at large, these practices must be EXERCISED within a human rights framework. Furthermore, full domestication of international human rights instruments that protect women is of paramount importance in the implementation of women’s rights to strengthen the hands of law enforcers. However, the application of the law alone is limited in addressing women’s rights, as the stereotyped mind-set of Tanzanian and many other African societies needs to be CHANGED for a better realisation of women’s rights.
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    Penal discourse and imprisonment in South Africa : an examination of the evolving discourse surrounding imprisonment in South Africa, from the colonial period to the post-apartheid era, and it's effects on the human rights of prisoners.
    Peté, Stephen Allister.; Zaal, Frederick Noel.
    The focus of this thesis is on the evolving public discourse surrounding imprisonment in South Africa from the colonial period to the post-apartheid era, and its effects on the human rights of prisoners. Although the punishment of imprisonment has dominated the penal landscape for around 200 years it is clear that, in terms of its stated aims of reducing crime and rehabilitating criminals, it has proven to be an abject failure. The influential philosopher Michel Foucault maintains that the failure of this form of punishment was apparent from the very beginning of its rise to prominence in the Nineteenth Century. It turned out, however, that the very failure of the prison system – its propensity to "create" a class of criminals separated from the rest of society – was useful in the context of developing capitalist industrial societies. As a result, this form of punishment did not wither away, but continued in existence despite repeated crises and widespread public acknowledgement of its failure to reform criminals or to reduce crime. The above may be true of the manner in which imprisonment, as a form of punishment, evolved in France and in the developed world in general, but the question at the heart of this thesis is whether or not Foucault's theory holds true in the South African context. In other words, by carefully tracing the public discourse surrounding imprisonment in South Africa from the colonial to the post-apartheid periods, a primary aim of this thesis is to establish whether the evolution of imprisonment in South Africa follows the same pattern as that outlined by Foucault – a pattern of apparent "failure" from the very start, with regular and repeated, but ultimately futile, attempts at "reform". By showing that this is, in fact, the case – that the South African prison system has been lurching from crisis to crisis since its inception, with the same "solutions" being suggested from one decade to the next – this thesis suggests that the "problem" with imprisonment in this country lies at a structural and ideological level. If this thesis is correct, "reforming" the South African penal system will not be possible without completely rethinking imprisonment as a form of punishment at an ideological level. Precisely what such a rethinking might entail, this thesis leaves open for future scholarship. An important secondary aim of this thesis is to trace the evolution of penal ideology in the South African context. In other words, it sets out to trace the development of the perceptions and ideas which have underpinned the punishment of imprisonment in this country over its history. Starting in the colonial period and focusing in particular on colonial Natal, these ideas may be described as the articulation of the penal theories and assumptions of an industrialised metropolitan political economy – Great Britain – and those of a rural colonial political economy – the Colony of Natal. A unique ideology of racially defined punishment emerges strongly towards the end of the colonial period. Moving to the apartheid period, through a careful analysis of various themes which arise in the public discourse surrounding imprisonment, the thesis traces the penal ideology operating within a society rigidly segregated according to race. Finally, once again through a careful analysis of the public discourse surrounding imprisonment, the ideas and perceptions which underpin punishment within post-apartheid South Africa, are examined. The thesis thus provides a unique overview of the manner in which penal ideology has developed within a uniquely African setting, by tracing the evolution of a set of ideas reflected in public discourse. A tertiary aim of this thesis is to trace the manner in which the role played by imprisonment within the social, political and economic structure of the country as a whole, has changed over time – together with social, political and economic developments. The use of imprisonment as a mechanism of social control during various periods – particularly the colonial and apartheid periods – as well as the constant problems which arose within the South African penal system because of this, is particularly important. Finally, as part of a detailed analysis of the public discourse surrounding imprisonment in South Africa during specific periods in the colonial, apartheid and post-apartheid eras, this thesis examines selected themes and sub-themes which emerged at various times. Taken together, these themes and sub-themes provide a series of "snapshots" of what it was like to be imprisoned in South Africa at particular times in the country's history. A constant focus throughout the thesis is the manner in which the human rights of South African prisoners have been abused from the time that prisons rose to prominence in this country almost two centuries ago – to the present day. This thesis strives not to lose sight of the human suffering which has characterised imprisonment in South Africa from colonial times to the present.
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    Corruption and the law : an evaluation of the legislative framework for combating public procurement corruption in South Africa.
    Sugudhav-Sewpersadh, Prenisha.; Devenish, George Edwin.
    No abstract available.
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    An analysis of challenging the commissioner's discretionary powers invoked in terms of Section 74A and 74B of the Income Tax Act 58 of 1962, in light of the Constitution of the Republic of South Africa 108 of 1996.
    (2013) Erasmus, Daniel Nicolaas.; Williams, Robert Charles.
    This thesis deals with the relevant law up to 30 September 2012. This thesis analyses the inter-relationship in particular between ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution of the Republic of South Africa (‘the Constitution’) (collectively referred to as ‘constitutional obligations’); s 4(2) of the South African Revenue Service Act 34 of 1997 (‘SARS Act’); the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’); and a decision by the Commissioner for the South African Revenue Service (‘the Commissioner’ or ‘SARS’, as the case may be) to exercise his powers under ss 74A and 74B of the Income Tax Act 58 of 1962 (‘ss 74A and 74B of the Income Tax Act’) by requiring taxpayers to produce or provide information, documents and things at the commencement of an inquiry or audit of taxpayers, and concludes that such a decision constitutes ‘administrative action’ as defined in s 1 of PAJA, or, alternatively is subject to the constitutional principle of legality. This conclusion is reached on the basis that such a decision, of an administration nature made, or leading to a further decision proposed to be made, or required to be made, to issue revised assessments will: · have been taken by an organ of State exercising a public power in terms of legislation; · involve the exercise of a discretionary power, where SARS determines whether and in what circumstances it will require a taxpayer to provide information, documents and things; · adversely affect taxpayers’ rights, and has a direct, external legal effect. The fact that the power in question is preliminary and investigative, and that its exercise does not in itself determine whether any tax, penalties and interest is payable, does not detract from the impending conclusion usually made by the same SARS officials that tax, penalties and interest will most likely become payable following from the preliminary investigation. The decision imposes on taxpayers an obligation to do something (to produce or provide information, documents and things) which, but for the exercise of that power, taxpayers would not in law be obliged to do, due to taxpayers’ privacy rights in terms of s 14 of the Constitution, and entitling them to expect SARS to abide by its constitutional obligations. A failure by taxpayers to comply exposes them to criminal prosecution under s 75(1)(b) of the Income Tax Act. Furthermore, the power exercised by SARS is not subject to the normal objection and appeal processes in the Income Tax Act, limiting the opportunity for taxpayers to challenge such a decision in terms of the Income Tax Act. Lastly, there is no relevant exclusion in the definition of ‘administrative action’ that removes this type of decision from that definition in PAJA.
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    The combatant status of non-State actors in international armed conflicts, in light of the notion of direct participation in hostilities : an analysis of relief workers, journalists, voluntary human shields, private-military and security contractors, and under-aged child soldiers recruited into non-State organized armed groups.
    (2012) Bosch, Shannon Joy.; Carnelley, Marita.; Cowling, Michael G.
    The increased outsourcing of many traditionally military functions, together with the fact that international armed conflicts are increasingly being fought in predominantly civilian locations, is contesting the international humanitarian law (IHL) presumption that civilians are necessarily non-participatory spectators in the theatre of war. The legal lacunae which surrounds non-State actors like: private military and security contractors (PMSCs), under-aged child soldiers, voluntary human shields (VHSs), relief workers and journalists, is complicating the legal assessment of their primary IHL status, obscuring crucial determinations around whether their actions amount to direct participation in hostilities, and confounding certainty around the legal regime applicable to them upon capture. Through critical analysis of customary and treaty based IHL, this project explores the primary IHL status of each of these types of non-State actors. Thereafter it seeks, through practical application of the ICRC’s Interpretive Guide on the Notion of Direct Participation in Hostilities, to draw specific conclusions on the range of activities that might compromise their civilian immunity against direct targeting. In the final analysis the study concludes that engaging in combat functions, operating weapons systems, participating in direct support functions, conducting training for predetermined hostile acts, sabotaging military capacity, guarding captured military personnel, gathering intelligence for use in marking targets, divulging tactical information or acting as a lookout will amount to direct participation in hostilities. Through similar investigation, the study concludes that mere interference, defensive guarding or shielding of civilian or other dual-use sites, and the defense of military installations against criminal elements, fails to rise to the threshold required to compromise a civilian non-State actor’s immunity against attack. While dispelling the misconception that civilian status itself can be legally forfeited, the project explores the practical legal consequences of civilian direct participation in hostilities: including legitimate direct targeting of these non- State actors for so long as their participation or membership of the combative group persist, and their criminal prosecution upon capture.
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    The protection of the rights of children affected by HIV/AIDS in South Africa and Botswana :  a critical analysis of the legal and policy responses.
    (2013) Sarumi, Rofiah Ololade.; Strode, Ann Elaine.; Carnelley, Marita.
    Abstract not available.