OpenUCT :: Browsing by Author "Calland, Richard"

Browsing by Author "Calland, Richard"

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Open Access
Addressing child poverty: Is Ugandan law and policy fit for purpose?
(2014) Kyobutungi, Diana; Calland, Richard
Research Objectives: First, to assess the normative framework for protection of the child from poverty as set by international and regional human and child rights instruments and accordingly, evaluate the scope and ability of Ugandan law and policy to protect the child from poverty. Secondly, to primarily analyse whether Ugandan law and policy adequately addresses child poverty in line with the recommendations and minimum standards set by the normative fr amework; and on this basis, if it is ‘fit for purpose’. Significance of the Study: To contribute a legal perspective on how to address child poverty and secondly, to create awareness of the diverse and changing manifestations of child poverty and generate strategic discussions for enhancement of child wellbeing.
Open Access
An evaluation of whether South Africa fulfils the requirements of the International Covenant on Economic, Social and Cultural Rights: To what extent is South Africa obliged to realise the right to basic education, and to what extent is South Africa meeting those obligations?
(2021) Köglmeier, Mareike; Calland, Richard
This thesis addresses the right to ‘basic education' in South Africa by focusing on the International Covenant on Economic, Social and Cultural Rights (ICESCR). To what extent South Africa is bound by this treaty and whether it is fulfilling its obligations are the central questions of the thesis. To provide answers to these questions, the situation in South Africa regarding the various aspects of this right in terms of the 4-A scheme, which was developed in order to define the country's obligations as per the ICESCR, is examined. It can be seen from the 4-A scheme that South Africa is bound by the ICESCR regarding basic education to a large extent. This includes that schools must be physically and economically accessible to learners, and that there must be a comprehensive infrastructure. The ICESCR also calls for a certain quality of education to be provided to learners with disabilities, as well as for learners to be provided with food. Based on this examination regarding these aspects of the right to education according to the ICESCR, it can be concluded that South Africa often does not meet these requirements.
Open Access
Deconstructing section 25 of the Constitution: has the inclusion of property rights in section 25 of the Constitution helped or hindered the transformation purpose of the Constitution, and specifically the state's commitment to land reform?
(2017) Basajjasubi, Allan Nsubuga; Calland, Richard
Prior to the advent of the Constitution and constitutional democracy land policies of the apartheid state secured resource ownership and control of land exclusively for the white minority, whilst dispossessing large communities of black, coloured and Asian people and banishing them to designated "native reserves". Shortly before the transition to democracy liberation groups together with the old apartheid regime, sought to negotiate on land policies which not only constitutionalized property rights but which also constitutionalized a priority to land reform in order to redress the injustices of the past. This paper examines whether the law, as captured in s 25 of the bill of rights, stood in the way of government inn unfolding a progressive programme of land reform. As a contribution to the debate surrounding issues on the appropriateness of the expropriation of land as a means of accelerating the pace of land reform, this papers offers a critical lens through which the state's current land reform policies are evaluated against the Constitution's transformative agenda of facilitating for an equitable system of land rights that provide development opportunities for black and coloured South Africans. Through an analysis of constitutional jurisprudence-including academic literature and legislation- this paper aims to investigate whether section 25 by reason of a lacking of sufficient expropriation and redistribution, as mechanisms for accelerating land reform, is anti-transformation. By deconstructing section 25 (the property clause) my paper offers insight into the controversial and rebuttable presumption that it is in fact not the Constitution but the state, that is responsible for frustrating and impeding the pace of transformation via constitutionally permissible land reform.
Open Access
Does a dominant party democracy erode constitutional legitimacy? An analysis of the African national congress and the South African constitution
(2020) Petersen, Shawwaal; Calland, Richard
It has been twenty-five years that the ANC has enjoyed political hegemony and an investigation is required into whether the legitimacy of constitutional supremacy remains intact as a state functioning under a dominant political party. There are certain pathologies which develop in a dominant political party state, pathologies which lead to autocratic rule and which has the potential to undermine the constitutional institutions such as that created by the South African Constitution. The first aspect considered is the weakened oversight role of Parliament over the executive because of the democratic centralism policies practiced by the ANC. Democratic centralism entails strict party discipline which means Parliament cannot fully exercise its role in holding the executive accountable as envisaged in the Constitution. Provisions of the Electoral Act and the Anti-defection clause in the Constitution further allows a concentration of power in the top hierarchy of the dominant political party, thus ensuring that political leaders have all the might to ensure that self-preservation is the order of the day. Parliament which is meant to represent the electorate can be considered as a mere formal or hypothetical construction as the decisions of the dominant political party affects parliamentary processes. The second constitutional implication is that courts become overburdened to make decisions on matters which are better suited to another branch of government. Whilst constitutional review is a function of a thriving and working democracy, the argument presented here is that the judiciary has come to make decisions of a highly political nature. The reason for this is first the failure of Parliament to correctly exercise its oversight role and secondly the abuse of power by high ranking politicians in the dominant political party. The unintended consequence of a dominant political party state is the expansion of the role of the courts as the courts perform the ultimate watchdog role due to the loss of accountability in a dominant party regime. Thus, trespassing onto the terrain of other branches of government and in doing so undermining the independence of the judiciary itself. The last aspect which impedes constitutional legitimacy is the large-scale ‘capture' of state institutions. This phenomenon is linked to the ANC practice of cadre deployment which is a means to safeguard policies and to ensure that promises to the electorate are carried out by party loyalists. This practice in a dominant-party political landscape has created a loophole whereby democratic values and constitutional safeguards are often compromised. Pliable cadres are deployed to key positions and reporting lines are blurred which in turn has facilitated certain corrupt tendencies, leading to the demise of accountability, transparency and the efficiency of government and state-owned enterprises. Through analyzing case law and party policies and considering the pathologies associated with dominant party rule which has developed under the ANC's governance, it is aimed to determine whether a dominant political party erodes constitutional legitimacy in South Africa.
Open Access
'Don't send your sick here to be treated, our own people need it more': immigrants' access to health care in South Africa
(2015) Alfaro-Velcamp, Theresa; Calland, Richard
This minor dissertation argues that there is more than a disjuncture between theory and practices, particularly for refugees and migrants and doctors in South Africa. The core idea of the Bill of Rights is that socio-economic rights are for everyone. Yet, its application suggests everyone means all citizens in the post-apartheid period, rather than all residents in South Africa. In the international domain, the human rights discourse calls on states to recognise responsibility extending to all peoples residing in a sovereign nation- state; but progressive realisation can hamper this aspiration. By employing progressive realisation within South African law, the idea that the state pays for what it can and makes future efforts to change, socio-economic rights for everyone currently cannot be achieved. This dissertation examines how Constitutional Court rulings on access to healthcare and relevant statutes have not been uniformly granted to everyone causing a disjuncture between law and practice.
Open Access
How to turn a Transparency Policy into a workable and effective Legal Regime
(2021) Khomo, Coreen Morongoe Boipelo; Calland, Richard
‘Democracy means being in touch and in tune with life as it's lived in our communities, and that is what we should expect from our leaders…' – Barak Obama Political parties are indispensable conduits for the enjoyment of political rights as they are responsible for aggregating and articulating interests, developing competing policy proposals, organising legislatures and co-ordinating the formation and activities of government, none of which is possible without adequate financial resources. The money political parties derive from the public revenue is not enough to allow them to run successful election campaigns, and as a result, they are left largely reliant on private sources of funding. However, the way in which this private funding infiltrates the political system has proven to be one of the biggest threats to democracy. An insidious link, fuelled by a lack of transparency and openness, is seen between those who donate money and those who receive it. Often, this culminates in a quid pro quo relationship between the donor and the donee which we see manifest as rampant corruption within the (dys)functioning of our state arms. In an effort to attenuate the ruinous effects of the unregulated passage of money through political systems, most democracies around the world have moved towards enacting regulatory disclosure laws, which are premised on the understanding that information on the private funding of political parties, and how this money is used, is essential for the effective exercise of the right to make political choices and to participate meaningfully in elections. No universally accepted model has been developed to regulate political finance; however, it is accepted that the core feature of any transparency policy is to be firmly rooted in the principles of access to information which in turn promotes accountability, responsiveness and openness. This paper examines whether South Africa's legal framework on political finance adequately addresses the problems that exist in relation to the funding of political parties and particularly, the threat of corruption.
Open Access
Information without power? Exploring the challenges and opportunities in the usage of the Promotion of Access to Information Act no 50 of 2000 (PAIA) as a potent tool for advancing socio-economic justice in South Africa Langton Miriyoga.
(2011) Miriyoga, Langton; Calland, Richard
That there is power in information is not disputable. Information empowers marginalised and impoverished citizens to engage with the state thus ensuring their inclusion in the governance and policy processes culminating in the realisation of their socio economic rights. Conversely, in spite of the opportunities for the usage of ATI law as a tool for advancing social justice, the state often retains the power to defy requests for access to information hence power to deny access thereto. This phenomenon is attributable to deeply entrenched socio political and systemic barriers resulting in the disempowerment of the poor from using ATI law as a tool for the realisation of social justice.
Open Access
The legal regulation of internal party democracy - a study of South Africa and Germany
(2015) Maier, Benjamin Gerhard; Calland, Richard
This paper attempts to expand the knowledge on these issues and therefore seeks to get a deeper understanding on the legal regulation of internal party democracy, which is widely considered as one of the most controversial topics concerning party regulation. This will be done by carrying out a case study of two constitutional democracies that handle party regulation differently. Germany, known as 'heart land of party law', constitutes the example of a state in which the internal organisation and functioning of political parties is regulated by both the Basic Law (the German Constitution) and federal laws. South Africa will be provided as the contrast example of a state that lacks express provisions that regulate the internal organisation and functioning of political parties. This paper does therefore not seek to conduct a 'classical' comparative study as the legal framework of two countries will be examined which deal in different ways with internal party democracy. However, this research approach promises to create a more holistic - even though certainly not complete - image of the challenges of the legal regulation of internal party democracy.
Open Access
More than a ‘culture of justification': evaluating the content and importance of parliament's accountability and oversight functions in a time of state capture
(2024) Davids, Kirsten; Calland, Richard
Before South Africa's current constitutional dispensation, the apartheid government, through its parliamentary sovereignty mode of governance, did very little to ensure accountability and oversight of the Executive branch of government. As a result, the Executive was able to establish what has been called a culture of authority. The advent of the Constitution, which entrenches the rule of law, a separation of powers doctrine, and the principle of legality, seeks to do away with the culture of authority and entrench a culture of 'justification'. However, to the extent that the Constitution includes clear accountability and oversight prescripts, to which all branches of government are bound, it envisages more than the idea of 'justification'. In this sense, at least, the Constitution seeks to ensure a 'culture of accountability' and oversight that ensures that certain checks and balances are in place between the different branches of government. Corruption and, specifically state capture phenomenon, are not exempt from these constitutional prescripts. This research suggests that corruption must be understood against the constitutional framework and in particular against the requirements of accountability and oversight.
Open Access
Outlining a right of access to sanitation in South African Law
(2017) Van Zyl, Nicolas; Calland, Richard
For many people their ease of access to a private home toilet means that when and where they go to relieve themselves is rarely a deliberation in their minds. In South Africa's rural and peri-urban spaces there are many poor people for whom this is not the case. For these people the inadequacy of their access to sanitation compromises their health, safety and ability to live a dignified life. Without an explicit right included in the Constitution, litigating on access to sanitation poses a formidable legal challenge. However, a critical analysis of South Africa's socio-economic and administrative law jurisprudence reveals that a fundamental right of access to sanitation is not exactly necessary. Outlining South Africa's vast network of service delivery legislation and policy, this thesis submits that there is a principled basis in our law to enforce a right of access to sanitation. It illustrates that this legal basis extends beyond merely protecting a person's existing access to sanitation, but includes positive duties imposed on the state to provide certain services as well.
Open Access
Reach out and be healed : constitutional rights to traditional African healing
(2009) Eastman, Michael; Calland, Richard
The introduction of the Traditional Health Practitioners Act 22 of 2007 has made lawful the practice of traditional healing. As everyone has the right of access to health care services, the question of whether the state bears a duty to reasonably provide access to traditional healing as an element of its public health care service, is raised. In a democratic society, law must be responsive to the needs of the populace. Ethnographic fieldwork demonstrates that traditional healing is used not in opposition to, but as a complementary twin of, biomedicine. Considering this, it shall be argued that economically, socially and medically, the incorporation of traditional healing into the public health care service is neither appropriate nor required by the Constitution.
Open Access
The right to a basic Education in South Africa: Providing content to the right to achieve adequacy in Schools
(2012) Kopkowski, K; Calland, Richard
This dissertation is a multi-disciplinary examine at the meaning of a right to basic education in South Africa. It will attempt to better understand the present circumstances in schools and the disparities in educational resource s, both material and human. In order to provide context for an unfamiliar reader, a brief review of the history of education will be provided. Resource disparities between the wealthy (minority) and middle class and poor (majority) will be reviewed and discussed with special focus on the Western C ape, where the research for this dissertation was conducted. The Western Cape is also the site of the ethnographic work collected and arranged in a section of the dissertation. US Legal cases surrounding education, a brief overview of the possibilities and problems of the legal approach are included in order to challenge but ultimately support the notion of the utility of the law as a tool to achieve substantive changes in educational equality. Recent cases in South Africa addressing the right are introduced as indicative of the possible jurisprudential trajectory that lies ahead. Finally, a list of the resources deemed 'basic' and necessary for educational success will be included and fleshed out within the dissertation.
Open Access
Right to know: case study of South Africa
(2012) Chacha, John Masaka; Calland, Richard
The Republic of South Africa became democratic after it succeeded to come out of a long time 'scourge' of the apartheid system which violated quite a number of human rights. One of the tools employed during that era was unnecessary secrecy which hampered citizen's right to know. When South Africa held its first election in 1994 it commenced a new South Africa without apartheid; it aimed at embracing human rights and to do away with all bad laws existing before a democratic South Africa. Consequently, the supreme law of the Country, the Constitution of 1996, entrenched human rights law amongst which is the right to access to information held by the State and another person that is required for the 'exercise and protection of human right'. This was underscored in section 32. This right started to ·appear in the interim constitution of South Africa of 1993, but was amended in the current constitution by the addition of a subsection which directed that 'national legislation must be ena~ted to give effect to this right ... ' The provision of the Constitution was effected by enacting a legislation of the Promotion and Access to Information Act of 2000) (PAIA) which put in practice the directive of the Constitution. This minor dissertation intends to make a follow up of how this right is being implemented in South Africa. In doing so, the right to know will be examined in relation to institutional and cultural secrecy. Briefly, the dissertation will seek to answer the questions: i) what are the legislative norms which have been put in place to promote and safeguard this right? and ii) are there limitations and challenges to this right? Then at the end of this dissertation, the research will present a comparative study with Tanzania, the country of origin of the present author, where the right to know is recognized by the Constitution of Tanzania but remains ineffective for lack of concrete laws to enforce the right of access to information. In a state where there is no law providing for public access to government information, this work can present a lesson from South Africa. Furthermore, it is hoped that this dissertation can contribute ideas at this moment when Tanzania is in a · transitional process of making a new Constitution.
Open Access
The Applicability of the Promotion of Access to Information Act 2 of 2000 and Promotion of Administrative Justice Act 3 of 2000 to the South African Legal Practice Council
(2020) Hona, Zakuthwani Alfred; Corder, Hugh; Calland, Richard
Section 33 of the Constitution guarantees to everyone the right to just administrative action that is lawful, reasonable and procedurally fair. The Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) was promulgated to give effect to give effect to this fundamental right as envisaged in s 33(3) of the Constitution. Section 32 of the Constitution also guarantees to everyone the right of access to information. The Promotion of Access to Information Act 2 of 2000 (“PAIA”) was promulgated to give effect to this fundamental right as contemplated in s 32(2) of the Constitution. This thesis considers the extent to which the provisions of PAJA may be applicable to the actions of the South African Legal Practice Council (“the LPC”). It also considers the extent to which the provisions of PAIA may be applicable to the records of the LPC. Some remedial legislative amendments to the provisions of both PAJA and PAIA are recommended with the view of addressing certain identified legal obstacles. The proposed legislative amendments will enhance the exercise, realisation, enforcement and protection of both the right to just administrative action and the right of access to information.
Open Access
'The Protected Disclosures Act 2000: limitation on the defamation law in South Africa'
(2008) Liwanga, Roger-Claude; Calland, Richard
Freedom of expression is constitutionally protected by the 1996 Constitution of South Africa. The constitution makes special provision to include freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity, academic freedom and freedom of scientific research. [FN11 However, the scope of freedom of expression does not cover the propaganda for war, incitement of imminent violence and advocacy of hatred based on race, ethnicity, gender or religion. [FN21 While freedom of expression constitutional protected, it is not the paramount value. It is limited as well by section 36 of Constitution, with the possibility of one being charged with defamation. Defamation is a public communication that tends to injure the reputation of another. [FN31 It includes both libel (written defamatory statement) and slander (oral ones). [FN41 Most jurisdictions, including South African, allow legal actions, civil and/or criminal against the defamatory statement. In the Court, therefore, in order to be found innocent, the defendant has to establish the "truth" of his/her statement. Failing to do so implies his/her liability and/or guilt.
Open Access
Transnational Land Acquisitions (TLA) : an evaluation of current legal frameworks and global regulatory responses from a human rights perspective
(2014) McLaren, Daniel Jamie; Calland, Richard
Transnational land acquisitions (TLA) are promoted by international development agencies such as the World Bank as part of a ‘win-win’ process whereby profitable investment stimulates much needed agricultural and rural development in low-income countries.4 However, there has been widespread opposition to TLA from international and national NGOs, UN agencies, rural peoples associations and other groups, who question the developmental benefits of TLA on a number of grounds, the most common of which is the threat they pose to food and tenure security.5 Though exact numbers are not available, due in large part to the secrecy in which many land acquisitions are conducted, evidence suggests that many thousands (perhaps hundreds of thousands) of rural farmers and other land users have been dispossessed of their land (often without compensation) or otherwise had their human rights violated as a consequence of TLA. The global land rush is a complex phenomena that cuts across the fields of development, international trade and investment, global governance, and international struggles for the protection and promotion of human rights. Scholars are beginning to shed light on these different aspects; in particular, the agro-economic impact of the global land rush has been widely discussed.6 However, the legal and governance questions raised by TLA have received less attention. This paper responds to this knowledge gap by responding to the legal and governance (as opposed to the wider developmental) questions raised by TLA. It will show that the current international, regional and domestic legal frameworks that govern TLA provide excellent security for foreign investments in land but fail to adequately protect the human rights of the rural land users affected by those investments.

Browsing by Author "Calland, Richard"

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