OpenUCT :: Browsing by Author "Lutchman, Salona"

Browsing by Author "Lutchman, Salona"

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Open Access
A 'harvest' in Malawi: the position of albinism in Refugee Law
(University of Cape Town, 2020) Bota, Jenala; Lutchman, Salona
The albinism community in Malawi has been faced with gruesome human rights violations for the past decade. These violations have included, assaults, kidnapping, mutilations, and murder. The cause of such violations is that the community of Malawi has for so long embraced the superstitious belief that the body parts of people with albinism are an essential charm for good luck. As a result of this, the albino community faces extinction because of the small population. The definition of a refugee under the 1951 Refugee Convention on the other hand, only provides for five grounds of persecution which includes race, religion, nationality, political opinion and membership of a particular social group. The dissertation seeks to unravel whether the international law grants refugee status to people with albinism. In response to the question, the dissertation analyses the definition of a refugee under the 1951 Convention. Persecution and inability of a State to protect victims of human rights violations are important elements to establish a solid case for refugee application. Hence, the dissertation tends to analyse whether the treatment of people with albinism in Malawi amounts to persecution. Besides, whether, they could be granted refugee status in other countries. The dissertation, furthermore, tends to analyse whether there are other mechanisms of the international community that are used to protect people with albinism. The findings in this thesis are that albinism is a ground of persecution because of the treatment that is followed due to their defined characteristics. That due to certain factors that needs to be satisfied to amount to effective national protection; Malawi has failed to protect people with albinism. Therefore, based on those factors, people with albinism could be granted international protection of refugees. Though there are other mechanisms by the international community used to protect people with albinism, there is a need to change the definition of a refugee under the 1951 Convention to accommodate problems arising in the contemporary world.
Open Access
Breaking the Glass Ceiling: Germany and its obligation to equal leadership representation under CEDAW
(2024) Hagedorn, Katharina; Lutchman, Salona
CEDAW guarantees equal rights for men and women. Its member states are obliged to implement those rights through policies and legislation, to enact the overall goal of social and structural change. CEDAW and its Committee have not made clear whether that includes a right to equal representation of women in senior and leadership positions. According to the World Economic Forum's Global Gender Gap Report, Germany is one of the leading countries in providing women with equal rights. However, they trail behind other European countries in their efforts of achieving equal representation in senior and leadership positions. My research therefore consists of two main questions: does CEDAW include a right to equal leadership representation? If so, is Germany fulfilling that obligation? The answer to those questions will provide a base for further research in that area. The identified shortcomings will be helpful in holding Germany's government accountable for its obligations under CEDAW as well as revealing areas of improvement. This research takes a legal approach, rather than an economic or sociological approach and uses desktop and literature research. I considered the principles of equality and the specific provisions within CEDAW to conclude that it does contain a right to equal leadership representation. Equally, I studied the legislation in Germany regarding women's quotas for management positions in Germany's biggest companies (First and Second Management Positions Act). I conclude that the Leadership Positions Act, being classified as a temporary special measure under CEDAW, is currently sufficient to fulfil the obligation to equal leadership representation. However, there is a need for constant re-evaluation and I recommend increasing the women's quota included in the Act from 30 Per cent to 40 Per cent.
Open Access
Closing “The Mediterranean Cemetry”: whether the European agenda on migration (immediate action) aimed at curbing the Africa-EU migration “crisis” is International Law compliant?
(2018) Mandela, Walter; Lutchman, Salona
The aim of the thesis is to establish whether the EAM (Immediate Action), formulated to curb the Africa-EU irregular migration “crisis” complies with international law. The thesis commences by arguing that migration today is a bastion of state sovereignty though fettered to a very limited extent by human rights, international law and states’ inter-dependence. The thesis then discusses the right to asylum and the principle of non-refoulement under international law. This is followed by a discussion on the EU as “sui generis” supra national entity that champions human rights and the rule of law globally followed by a review of its “sui generis” immigration law and rules under which the EU and member states share competence. Fundamental terminologies in the migration discourse: Migrants, Irregular Migrants, Refugees and Asylum Seekers are defined. A critique of The Refugee Convention4 is done, revealing its parochial, Eurocentric, racist, sexist nature and incompatibility with recent human rights developments; factors that to a large extent make it archaic and divorced from the realities of today’s refugee dynamics yet the Convention is the centrepiece of international refugee protection today. The thesis then interrogates the Africa-EU irregular mass-migration; the push and pull factors as well as the general modus operandi are reviewed. The generally recognised routes; Western Mediterranean, Central Mediterranean and West African which facilitate the migration are assessed. Lastly, the thesis then analyses the compliance of the EAM (Immediate Action) with international law. Each of the Immediate Actions; 1) Saving Lives at Sea 2) Targeting Criminal Smuggling Networks 3) Relocation 4) Resettlement 5) Working in partnership with third countries 6) Using the EU's tools to help frontline are subjected to the relevant international law governing them to test their compliance with international law. Final conclusions of the thesis are then drawn.
Open Access
Gender and the Rule of Law in Theory and Practice: Challenges and Prospects for Strengthening Women's Access to Justice in Gender-Based Violence Cases
(2023) Beninger, Christina; Lutchman, Salona; Manjoo Rashida
The rule of law is increasingly viewed at the global policy level as essential to human rights, justice and development. Rule of law reform programming is now a core part of development efforts led by the United Nations and other actors in more than 150 countries around the world. Yet, the rule of law in both theory and practice is subject to a range of critiques and contested interpretations. Despite the prominence and prevalence of the rule of law both as a normative value and a priority area of development assistance, in reality an enormous justice gap exists globally, especially for women. Although feminist critiques highlight concerns about how the rule of law works for women, gender gaps persist in rule of law literature. This thesis adopts a feminist lens and draws on international human rights frameworks to critically investigate how gender, and specifically the gendered dimensions of access to justice for women, is considered and integrated in the rule of law in theory and practice. Given the prevalence of gender-based violence against women (GBV), increasingly recognized at international legal and normative policy levels as one of the world's most pervasive human rights violations, and the endemic challenges with accessing justice for women in GBV cases, the thesis applies a thematic focus to this issue. Linking theory with practice, the thesis presents original qualitative research from both local and global levels, drawing on diverse perspectives from rule of law practitioners and gender experts. A unique in-depth case study from Myanmar, a transitional and conflict-affected context, provides insights into the diffuse, plural justice continuum women must navigate to seek justice in GBV cases, encountering barriers at every step. The research findings demonstrate that there is evidence of growing attention to gender issues, and especially women's access to justice, in rule of law policy and programming, although gaps between rhetoric and reality persist. Significant challenges include male-dominated patriarchal legal and political systems that tend to show little political will for integrating gender into rule of law programs. Discriminatory social and cultural norms overarch and shape experiences of and responses to GBV cases and attempts to seek justice, and impede efforts to strengthen women's access to justice and gender integration in rule of law programming. The thesis findings identify key features of the process and actors involved in the multidirectional process of promoting and resisting normative change related to gender and the rule of law. Finally, iv the thesis identifies a proposed framework of key approaches to integrate gender into rule of law programming, aiming to contribute towards bridging the global gender justice gap.
Open Access
International criminal law and the African girl child soldier: does the international criminal law framework provide adequate protection to the African girl child soldier?
(2017) Hlatshwayo, Belinda S T; Lutchman, Salona
This dissertation aims to answer the question: does the international criminal law framework provide adequate protection to the African girl child soldier? The motivation for the choice of this question came about in my final year of LLB. I conducted research on crimes against humanity committed by Boko Haram, and found a lot of research had been conducted on the use of children in war. I became particularly interested in the use of girl child soldiers because of the disparity between them and their male counterparts - how they were used during conflicts and the definitions of child soldier in international statutes. The constant reference in international treaties of child soldiers as those who take part in 'direct hostilities', I felt excluded girl child soldiers from protection as girl child soldiers are often used as base-camp soldiers, spies and often times sexually, physically and emotionally abused.
Open Access
International displacement and state compliance with international human rights standards: the current protection of internally displaced persons' right to physical security in Nigeria
(2018) Bjoerkan, Maren; Lutchman, Salona
There are approximately 65.3 million forcibly displaced people in the world. A large majority of these people are internally displaced. Of the 40.8 million internally displaced persons' (IDPs) worldwide, Nigeria had a total of 1,955,000 IDPs at the end of 2016. Consequently, Nigeria is among the countries with the highest number of displaced persons globally. A wide range of political, economic, social, and environmental factors, including poverty, corruption, and internal armed conflict, affect the population in Nigeria and contribute to internal instability. Thus, as Nigeria represents a complex and multi-layered situation of internal displacement, it makes for an interesting case study to understand international protection of IDPs. This dissertation asks whether the current protection of IDPs' right to physical security in Nigeria complies with international human rights standards. The current international legal framework in place for the protection of IDPs is relatively extensive, and undergoes continuous development. The United Nations Guiding Principles for the Protection of Internally Displaced People and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), as well as general human rights mechanisms, comprehensively set out the rights and guarantees for the protection of the physical security of IDPs. Although there has been great improvement in recent years relating to the legal protection of and assistance to IDPs, the de facto implementation and enforcement of these frameworks in Nigeria is not in full compliance with international human rights standards.
Open Access
Is SA law and policy equipped to deal with the peculiarities of Human Trafficking?
(2020) Houston, Lorna; Lutchman, Salona
Tens of thousands of men, women and children are being trafficked around the world and brutally exploited. This research investigated if SA law and policy is equipped to deal with the peculiarities of Human Trafficking. This dissertation's central thesis is that the legal and policy response to human trafficking in South Africa is inadequate to deal with its peculiarities. The anti-trafficking response must extend beyond the application of human rights and criminal law to include a cross-cutting, multi-sectoral, socio-economic and political response that addresses its causes and consequences. The study considers and explores the definition of human trafficking, its causes, consequences and the peculiarities and specificities of human trafficking in SA. The international, regional and domestic legal frameworks and their relevance for human trafficking is outlined with emphasis on the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and the National Policy Framework. A feminist lens using Intersectionality and Standpoint Theory, is applied to inform the critical analysis of the research question. This thesis demonstrated that South Africa's law and policy although promising, is insufficient in dealing with the peculiarities of human trafficking. The law needs to better account for the root causes of trafficking. It is essential that this response is informed by intersectionality to enable the implementation of broader solutions especially addressing the violation of social and economic rights and the root causes of trafficking.
Open Access
Navigating the criminalisation-decriminalisation dilemma in sex work: an analysis of its affects on human rights and proposals for their safeguard
(2023) Gandhi, Dipesh; Lutchman, Salona
This dissertation will examine how certain legal systems deal with both sex workers and those involved in the sex trade. It will demonstrate that several legal systems have failed to achieve their intended goals of protecting the rights of ‘everyone' and to establish a method to effectively address sex work. The ongoing debate surrounding sex work is mostly centred on whether it can be considered as a legal form of labour or whether it is born out of gender inequity. The anti-sex work human rights supporters believe that women enter the industry primarily as a result of poor socioeconomic circumstances or compulsion, while the pro-sex work human rights supporters believe that sex workers should be considered victims because of the prejudices they suffer. Sex workers face numerous obstacles, therefore, an adequate legislative framework to address these concerns is vital. The present international and local legal frameworks should prioritise the vulnerability of sex workers, and governments must intervene to adopt legislation that improves their lives. Sex workers have traditionally been stigmatised and marginalised, making it difficult for them to campaign for reforms in sex work laws and regulations, or for their concerns to be taken seriously. The recognition of women's right to equality as an enforceable fundamental right may be attested due to the presence of internationally recognised human rights frameworks. This exclusion acknowledges that the majority of sex work victims are women and young girls. However, it might be claimed that the various legal frameworks compel states to adopt measures aimed at protecting women against sexual exploitation, and that they should be gender-neutral in construction and consistent with the protection of sex workers' human rights. Even though gender inequity and prejudice are factors that impact a woman's choice to enter and work in the sex industry, criminalising these women for those decisions adversely affects their human rights. There are significant human rights distinctions between criminalisation, which has the aim of entirely abolishing sex work, and decriminalisation, which seeks to fully realise the human rights of sex workers. Criminalisation falls significantly short of addressing these human rights concerns, whereas decriminalisation will provide a solution to gradually fade the current stigma that sex workers face, reducing their vulnerability to violence and abuse.
Open Access
Overcoming Parental Consent: How can International Human Rights Law be used to Protect a Child’s Right to Health in Childhood Immunization Cases?
(2020) Saukila, Walhalha Sphiwe; Lutchman, Salona
Children have the right to preventive medical treatment and interventions that serve their best interests. In the case of minors, this right is exercised by the parent or legal guardian with hopes that they will exercise their responsibility positively. Over the years however, this right has been challenged by an increasing number of parents withholding consent to immunize their children against some deadly diseases for one reason or another. This has led to a conflict between parental consent and the child’s right to health and resolving this conflict is an issue of law. Childhood immunizations are the first line of defence for a child and as such, should be considered a basic human right that needs to be protected. By denying this right to the child, it infringes on that child’s right to health and right to life. This should not be the case as international human rights law demands the protection of society’s most vulnerable members, especially children.
Open Access
Public participation as a tool for the realisation of socio-economic rights: the pitfalls of state organised spaces of participation
(2018) Phama, Wandisa; Lutchman, Salona
This paper seeks to investigate the legal structures and sources which provide for the obligations of the state to facilitate public participation in the realisation of socio-economic rights. The paper further explores the different interpretations of the notion of public participation in an attempt to critique and interrogate which kind of public participation actually allows for communities to meaningfully participate in the processes of the state to realise socio-economic rights. The paper will argue that the effectiveness of the state in facilitating public participation in its affairs depends on the notion of public participation adopted in a particular state. It will further argue that the effectiveness of such participation by communities is dependent on the understanding that meaningful spaces for participation occur through power contestations. Participation may mean very little for the realisation of socio-economic rights if the power of the state over citizens is not challenged and contested in spaces of participation. The paper will argue that for public participation to be meaningful in the realisation of socio-economic rights, it needs to occur in spaces in which the state will not have too much power over citizens to an extent that their participation is just for display. It will further argue that it is how people are perceived by the state and how they perceive themselves as citizens which determines their ability to challenge the state's power in spaces of participation. When communities are treated as citizens because of the rights they have, public participation processes to discuss the provision of basic services are then facilitated with the understanding of how communities can partner with the state with influence and power that is required to take decisions to realise their rights. It is submitted that part of the frustration with the exclusion in spaces where socio-economic rights enforcement decisions are taken is created by how South Africans as citizens are not always treated as rights bearers who can challenge the state. The exclusion of communities from planning for service delivery by the state has become internalised by some communities as part of the rules of the game of governance. Such internalised exclusion is a major contributing factor in the increased frustration with slow service delivery and a government that is unaccountable to the people. The paper will argue that for public participation to be an effective tool in the realisation of socio-economic rights taking into account the theories of power, space and citizenship there is a need for public education on how communities can demand a responsive behaviour from the state beyond protests. There is further need for state officials for example to attend workshops on their obligations to facilitate public participation in planning for the realisation of socio-economic rights when they take office. The paper will further argue that, in order for public participation to be effective in contributing to the realisation of socio-economic rights, Chapter 9 institutions also need to play a more active and visible role in communities and assist to hold the state accountable to facilitate public participation as that is one of the most important factors in the realisation socio-economic rights. The paper will argue that, although public participation is but one tool in the arsenal of tools to facilitate the realisation of socio-economic rights, it is important for many reasons. It is important for the manner in which it creates a space for decisions to be taken in an inclusive manner. The involvement of communities in the decision making processes of the state also legitimises the decisions so taken. Meaningful and inclusive public participation allows for a situation in which various options are put on the table in dialogues between the state and communities so that when a particular outcome is reached it could be what is best for those communities as other perspectives are heard and discussed.
Open Access
The evolving law on sexual and reproductive health rights and the right to abortion in Kenya
(2021) Aliongo, Sara Ayoti Mate; Lutchman, Salona
Article 26(4) of the Constitution of Kenya guarantees the right to abortion in these circumstances: ‘where there is danger to the life of the mother; where there is danger to the health of the mother; if there is need for emergency treatment of any kind; and if allowed by any other written law.' Accordingly, this dissertation argues that the jurisprudence of international and regional human rights bodies demonstrates that the right to abortion is a justiciable human right. Therefore, it probes whether Kenya is honouring her state obligation to respect, promote and fulfil the right to abortion as a human right as guaranteed in the Constitution and international law obligations. Furthermore, it analyses Kenyan law and policy on the right to abortion and assesses whether Kenya's law on abortion is a barrier to the effective realization of the right to abortion. To investigate whether safe abortion is accessible to Kenyan women and a realizable human right in Kenya, the dissertation examines the Constitution, legislation and government policies on access to abortion vis-à-vis the reality and experiences of Kenyan women accessing safe abortion. The dissertation finds that the subsisting contradiction between the constitution and the penal code provisions on access to abortion reinforced by inconsistent policies from the government of Kenya continues to exacerbate unsafe abortion in Kenya thus hindering the effective realisation of the right to abortion in Kenya. The study compares how South Africa, has implemented its progressive law on the right to abortion and the insights that Kenya could draw from the South African experience.The study concludes by appealing to Kenya to ensure the effective realisation of the right to abortion by revoking the punitive clauses of the penal code, aligning laws and government policies with Article 26(4) of the Constitution, enacting the Reproductive Healthcare Bill that will expand access to abortion and educating Kenyans on the current permissive legal provisions on access to safe abortion.
Open Access
The plight of victims of wrongful acts committed by international organisations: a light at the end of the tunnel?
(2020) Likomwa, Ethel Tilly; Lutchman, Salona
The activities and the level of influence of International Organisations (IOs) have grown extensively in recent years. This has resulted in IOs having a greater impact, both positively and negatively, on the lives of individuals. In as far as the negative impact is concerned, it is a well established principal of international law that the wrongful conduct of an IO attracts the responsibility of that IO. The reality however is that holding IOs responsible for their wrongful acts is an uphill task. In this regard, there has been an increase in calls for more effective ways of holding IOs accountable for their actions. This thesis adds its voice to those calls. The point of departure however, is that in this thesis, the question of IO responsibility is approached from the perspective of the victims of the wrongful conduct of IOs. The call for greater effectiveness in holding IOs to account is made through an illustration of the difficulties faced by those attempting to seek redress for wrongs committed by IOs. Additionally, the thesis examines the role of domestic courts and institutions in holding IOs to account. This examination is necessary in light of the increasing trend of domestic and regional courts piercing the immunity veil of an IO, where that IO has not provided alternative dispute settlement mechanisms.
Open Access
The Right to Say No: Customary Land Rights, Extractive Industries and the Need for Free, Prior and Informed Consent
(2021) Mc Lean, Richard Stowe; Lutchman, Salona
Compared to the more “traditional” Civil or socio-economic rights, which are regarded as being held by individuals; the notion that communities can also be holders of particular rights is still relatively new. And yet, the suffering inflicted on customary communities by states, corporations and even individuals dates back to the colonial modes of production, wherein colonial authorities would extract raw materials from colonies. This being the case, it is important for any modern system for the protection of human rights – especially on the African continent - to take the unique circumstances of communities adversely affected by extractive industries into account. It is with this in mind, that my dissertation aims to offer an in depth analysis of the legal relationship between the interests of extractive projects and the rights of communities affected by such projects. As I am writing from a South African context, a significant percentage of my research is concerned with how this relationship plays out in South Africa – with particular attention being paid to the cases of: the Xolobeni Community1 in the rural Eastern Cape, the Bakgatla Ba Kgafela in the North West2 and the Somkhele Community in Kwa-Zulu Natal3 . However, I do also address the broader context by spending an entire chapter dealing with the international, regional and sub-regional mechanisms which can have an impact on the rights of mining affected communities. I also spend a significant part of my research arguing in favour of the standard of Free, Prior and Informed Consent as the minimum standard of community involvement in the decision making process relating to project that might affect them (colloquially known as “FPIC”). These arguments are based on the findings of a number of theorists and legal practitioners who have found that the lack of FPIC is one of the most significant stumbling blocks for the promotion and protection of the rights of mining affected and other marginalised communities. It is my hope that this research will serve as the basis for discussions around these issues in academia and practice with the end goal of advancing the rights of communities affected by mining or other extractive operation.
Open Access
Uganda's state responsibility under international law to safeguard refugee children's right to access education
(2018) Nsengimana, Jovenal; Lutchman, Salona
Uganda is Africa's largest refugee hosting country and third in the world with more than 1.25 million refugees as of June 2017. The majority of refugees there are children. Uganda's refugee regime and hospitality date back to the days of World War II, prior to the country's independence, when it hosted refugees from European countries. Since then, the country has generously continued to open its borders to anyone seeking international protection and assistance mainly from the conflict affected countries in the East, Horn and Great Lakes Region of Africa. In compliance with the 1951 UN Convention and its 1976 Protocol Relating to the Status of Refugees and the OAU 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, Uganda enacted the Refugees Act No.21 of 2006 and the Regulations Act of 2010 to effectively manage refugee needs. The increase in the number of refugees in Uganda amidst the limited resources at its disposal poses serious challenges in meeting its international obligation to safeguard the rights of refugee children's access to education. This thesis examines the country's responsibility under international law to protect, promote and fulfil the right to access education for refugee children, particularly aimed at understanding the challenges of provision of education to strengthen multi-level response. Research finds international and regional instruments sufficient for the protection and guarantee of education for children. However, the main refugee treaties fail to adequately provide the right to education for refugee children. The UN Convention Relating to the Status of Refugees has provision for education rights but makes no reference to refugee children while the OAU 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa provides neither the right to education nor rights to children specifically. The analysis of Uganda's policy and laws on safeguarding refugee children's right to education revealed glaring shortfalls. The laws fail to provide adequate protection to refugee children's education rights. Notwithstanding the existence of an enabling legal and policy framework in Uganda that ensures access to education for nationals, refugee children continue to face legal and structural barriers in accessing post-primary education. The paper shows that both international and national laws guaranteeing the right to education for refugees limits the extent to which it is exercised. At national level, this is not only discriminatory but also inconsistent with the provisions of the Constitution of Uganda relating to education and child rights.
Open Access
Under international law, when can states deny refugees asylum on the basis of national security: an analysis of the 2017 U.S. ‘travel ban’ executive orders and the suspension of the refugee admissions program
(2018) Barker, Frances; Lutchman, Salona
In 2017, President Trump of the United States issued the ‘Travel-Ban’ Executive Orders. These orders restricted immigration from certain Muslim-majority countries and suspended the U.S. Refugee Admissions Program for 120 days. Subsequently, on 24 September 2017, the President issued Proclamation 9645, which continued many of these immigration restrictions. The actions of the U.S. President reflect the growing connection between refugees and issues of national security. This paper seeks answer the question as to when states can reject refugees on the basis of national security under international law. Particularly, this paper provides an overview of the international refugee law regime and the extent to which nation states are bound by their obligations. Subsequently, this paper outlines the national security exceptions to refugee status under international law – with specific regard to Article 33(2) and Article 1F of the UNHCR Refugee Convention, and the concept of non-entrée. Following, it outlines the domestic U.S. immigration and refugee law regime, and its relationship to international law. Subsequently, this paper performs an analysis of President Trump’s ‘travel-ban’ executive orders. Finally, it assesses whether the executive orders violate the United States’ international law obligations – holding that a blanket immigration and refugee ban does not fall within the scope of the national security exceptions provided in international law. In conclusion, this paper holds that the ‘travel-ban’ executive orders and the Proclamation put the U.S. in violation of its obligations under international law. This paper aligns with the current literature in its examination of the relationship between national security and refugee law – however, it is able to consider these issues in light of recent events in international refugee law. Importantly, this paper provides an academic analysis of the executive orders and the Proclamation from an international law perspective, where much of the previous literature focused primarily on U.S. domestic law. Thus, this paper aims to be at the forefront of legal analysis of the United States’ policies regarding refugees and immigration.
Open Access
Undocumented and Invisible: Are SADC Member States Implementing the Rights to Birth Registration and Nationality for Migrant Children?
(2022) Fortuin, Rowan Victor; Lutchman, Salona
The Southern African Development Community sees high levels of migration. Many children within these groups are undocumented and have no means to prove their identities. This greatly increases their risks of statelessness, which opens the way to abuse, exploitation, trafficking, and the inability to claim their human rights. Birth registration represents one of the main protections undocumented children have in avoiding statelessness, as this reduces their chances of abuse, as well as provides them with a better chance of accessing nationality. Providing nationality is also important in reducing statelessness, as birth registration is not enough on its own. Therefore, whether birth registration and nationality are available for undocumented migrants in SADC member states is examined within both the international and regional legal contexts. International human rights treaties go a long way in providing rights to birth registration and nationality, but the scope of these rights is not infinite. International law takes a strong stance on birth registration, as it is provided in many of the main treaties, as well as the fact that it is linked to the best interests of the child principle. The right to nationality on the other hand is generally understood to have restrictive application in that migrants do not have the right to the nationality of the host state, a state must just ensure that a child has the right to “a” nationality. This reduces the ambit of protection. In turning to the SADC, the region in general was found to have a number of barriers to birth registration and nationality. For birth registration, gender discriminatory laws, centralised organisational structures, the COVID-19 lockdown, and penalties for late registration were counted as among the leading barriers to registration. This was similarly the case for South Africa and Zambia which were two key country profiles analysed. For nationality, there were many gaps in protection, such as uneven protection for foundlings and children who would otherwise be stateless, as well as onerous barriers to naturalisation. Given these findings, this dissertation concluded that SADC members are not adequately giving effect to their international obligations
Open Access
Unlawful sale of state-subsidised houses by the Cape Town community housing company
(2022) Mathiso, Chwayita; Lutchman, Salona
This dissertation clarifies the protections available to housing subsidy beneficiaries who purchase houses through credit agreements. I look at the legislative framework that protects the right to access to housing in terms of section 26 of the Constitution. I consider a Constitutional Court case Amardien and Eleven Others v Cape Town Community Housing Company 2019 (2) BCLR 193 (CC) which established that sections 19 of the Alienation of Land Act and 129 of the National Credit Act give the procedural steps that a developer needs to take before it can cancel the sale agreement with subsidy beneficiaries to lawfully cancel such agreements giving effect to the right to housing. The case study determined that where disputes arise, both the National Credit Act and Alienation of Land Act provisions apply in the enforcement of the agreements. The beneficiaries' purchases of their houses must be registered to protect them from the seller selling their properties to third parties. The seller does not remain the property owner and is precluded from repossessing the houses and selling them to third parties without a court order. I argue that such conduct amounts to an unjustified infringement of their housing rights and constitutes an arbitrary deprivation of property. Judicial oversight is required in determining whatever enforcement mechanisms that are appropriate in the circumstances of default by the beneficiaries. I discuss the State's obligations in terms of the Housing Act and international law in the enforcement of the subsidy agreements by the Company relating to the beneficiaries' right to housing. I discuss how the State breached its obligations by failing to fulfil its obligations and the impact of such failure on the beneficiaries.
Open Access
Unlawfully occupying the bridge to transformation: a case for judicial exploration when evictions are unjust and inequitable
(2021) Jeewa, Tanveer Rashid; Lutchman, Salona
Unlawful occupation has recently peaked due to the slow pace of the State's provision of housing, coupled with the private housing market's inability to cater for poor and vulnerable people in society. As unlawful occupation happens on an indiscriminate basis, privately owned land also falls prey to it. In those instances, two core rights operate at odds with each other: the right of unlawful occupiers not to be arbitrarily evicted per section 26(3) of the Constitution, and the right of property owners not to be deprived of their property, except through the operation of a law of general application as per section 25 of the Constitution. When the unlawful occupation of private land is not contained, the number of unlawful occupiers grows rapidly, making immediate evictions impossible as they would be unjust and inequitable as per the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Constitutional Court has previously awarded constitutional damages in a similar case (President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5). Damages were to be paid until evictions have been completely carried out. Yet 15 years later, it is clear that the informal settlement on Modderklip's land has grown in size and acquired some level of permanence. This dissertation argues that such cases amount to an unjustifiable limitation of the land owner's right to not be deprived of property. Consequently, the dissertation makes a case for judicial expropriation as a just and equitable order under section 172(1)(b) of the Constitution. The effect of such an order on the principle of separation of powers is also considered and it is contended that, in such exceptional circumstances, the courts should not shirk away from the duty of holding the State accountable and dispensing justice to the parties by expropriating the land, even if it tests the flexibility of the principle of separation of powers.

Browsing by Author "Lutchman, Salona"

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