Browsing by Department "Department of Public Law"
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- ItemOpen AccessA 'harvest' in Malawi: the position of albinism in Refugee Law(University of Cape Town, 2020) Bota, Jenala; Lutchman, SalonaThe 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.
- ItemOpen AccessA case study of whether South Africa's foreign policy with Zimbabwe and China is informed by its constitutional and international human rights obligations(2020) Madima, Reshoketswe; Chirwa, DanwoodSouth Africa is a country that in the past has experienced gross human rights violations, and therefore has sought never again to have such violations. The government has sought to protect people's human rights by including them in the country's Constitution. Furthermore, South Africa has engaged with various international human rights bodies to further advocate for good human rights practices. However, the country has encountered some domestic challenges, with inequality and poverty being rife in the country. These challenges have implications for South Africa's economic foreign policy goals. This study explores South Africa's foreign policy with the Chinese government and the Zimbabwean government to explain why the country has chosen countries with poor human rights such as these. The research study will be centred around the period from 2008 to 2017. The offensive realism theory formed the theoretic framework of this research study. The study employed a qualitative research strategy as well as an interpretivist research paradigm. The findings show that when it comes to South Africa's foreign policy agenda, the government's goal is to establish a partnership with another country that will ultimately benefit the economic interests of South Africa, regardless of the country's human rights principles.
- ItemOpen AccessA century worth celebrating(2010) Corder, HughIt is understandable that no great fuss has been made of the hundredth anniversary of the establishment of South Africa as a nation state within its current borders (through the South Africa Act 9 Edw VII, ch 9). The Act of Union, after all, while it represented a triumph for those arguing for the formal reconciliation of ‘Boer and Brit’, marked much more negatively the exclusion of the majority of the new country’s population from any effective say in the institutions of government. Not only were the proponents of federalism, which might have allowed the less conservative leadership in the Cape Colony to retain a degree of autonomy through which to pursue government based on individual worth, soundly defeated, but the elements of non-racial government preserved in the Cape franchise arrangements (and to a lesser extent, those of Natal) were seen as provisions to be protected as a dying species, rather than as bridgeheads for their expansion more widely within the Union
- ItemOpen AccessA common maritime regime for the South China Sea(1994) Sun, Kuan-Ming; Devine, D JThe South China Sea is a semi-enclosed sea in two respects. In terms of the geographical reality, the region is readily separable from the waters surrounding it. Moreover, it falls under the 1982 Law of the Sea Convention, which requires littoral states to cooperate in the maritime sphere. At present, a number of problems beset the region.
- ItemOpen AccessA critical analysis of the Delay Rule in South African Administrative Law post State Information Technology Agency Soc Limited v Gijima Holdings (PTY) Limited(2022) Basini-Gxokonyeka, Nosicelo Natasha; Ally, NurinaThe State Information Technology Agency's (SOC) Limited v Gijima Holdings (Pty) Ltd was seminal in establishing that the Promotion of Administrative Justice Act, 2000 is not available to an organ of state wishing to set aside its own decision while acting in its own interest. The case is also significant for the impact it has had on the delay rule. This paper identifies a problem presented by what will be referred to as the Gijima principle. The principle suggests that a court may be required to declare a decision unconstitutional in accordance with section 172(1)(a) of the Constitution even if there is no basis for overlooking the unreasonableness of the delay. This paper considers the impact of the Gijima judgement on the delay rule and the continued relevance of the delay rule in administrative law post- Gijima. It will be argued that there are three major challenges this principle poses to the rule of law namely, it promotes arbitrary and opportunistic self-serving reviews by state officials. Secondly, it indirectly promotes disregard of public procurement laws by making it easy for organs of state to undo their decisions. Lastly, it undermines the finality and certainty of decisions, which have the potential to deter prospective suppliers from contracting with the state. This paper critically assesses trends emerging from lower courts in response to the Gijima principle and provides recommendations as to how some of the issues raised by the judgment's approach may be rectified. Overall, I argue that the Gijima principle effectively eradicates the delay rule and that there is a need for continued relevance of the rule in administrative law. The Constitutional Court needs to strike a balance between preserving the delay rule on the one hand and exercising its prerogative to develop the common law on the other.
- ItemOpen AccessA critical re-appraisal of vernacularisation in the emergence and conceptualisation of community bylaws on child marriage and other harmful practices in rural Malawi(University of Cape Town, 2020) Kachika, Tinyade; Chirwa Danwood; Smythe, DeeThe thesis addresses the question: how have international human rights norms for protecting women and girls from harmful practices influenced and shaped the emergence and conceptualisation of community bylaws for addressing child marriage and other harmful practices affecting women in rural Malawi? 'Community bylaws' is a label for Chief-led community 'rules' aimed at combating harmful practices, which mostly affect women and girls. This thesis contributes to the theoretical discourse on norm diffusion by critically assessing and appraising the way in which scholars have conceptualised how international human rights norms are internalised, and, particularly, how vernacularisation operates, through a case study of the community bylaws. Drawing from qualitative empirical data following a study conducted in four districts covering the three regions of Malawi, the study focused on the territories of four Senior Chiefs. Data was gathered through semi-structured interviews with Senior Chiefs and government officials, NGOs, and donors; and through focus group discussions with Group Village Heads, Village Heads, groups that formulated or monitor the implementation of community bylaws, and women living under these bylaws. The thesis shows that while scholars have sought to explain how international human rights norms are appropriated in local communities using the concept of vernacularisation, existing conceptualisations do not adequately represent what is happening with the community bylaws phenomenon. Vernacularisation is a unicameral concept that sees human rights ideas and programmes as being purposefully introduced in local communities by epistemic outsiders. Based on empirical data, this thesis argues that the concept of 'horizontal vernacularisation' better describes the processes occurring in respect of community bylaws in Malawi. This concept has regard to vernacularisation as a bicameral act, whereby the local can also trigger vernacularisation, whether knowingly or not. Thus, horizontal vernacularisation acknowledges that human rights appropriation and translation through community bylaws unfolds within a predominantly local-local dialogue, and is not usually structured, since the bylaws sprout in a continuum of intuitive, interlocking, convoluted, and iterative processes. As such, this thesis contributes to a deeper understanding of community bylaws in rural and cultural settings, and their role in reconceptualising the internalisation of international human rights norms for protecting women and girls from harmful practices.
- ItemOpen AccessA critical reflection on the judgement of the federal constitutional court of Germany on the European central bank's public sector purchase programme: ultra vires review and the primacy of European Law(2022) Rademann, Philipp; Ally, NurinaThe financial politics of the European Union (EU) have been highly debated ever since the 2008 crisis, which left some European countries in financial turmoil. One part of the European financial policy has been the purchase of government bonds through the European Central Bank. The most vocal critics of this policy have for a long time emerged from Europe's biggest economy – Germany. A case against the purchase of government bonds was eventually brought to the Federal Constitutional Court of Germany (FCC). The FCC referred the matter to the European Court of Justice, which in 2018 upheld the practice and found it legal. In May of 2020 the FCC went against the European Court of Justice and pronounced the practice of purchasing government bonds as well as the decision upholding it to be ultra vires. Although there have been other domestic courts within the EU that have overruled EU law, last years's verdict was unique in its blatant defiance of the European institutions and the primacy of EU Law. This paper analyses the two judgements with a focus on the issues of the ultra vires review as well as the primacy of EU law. By scrutinising the FCC's case law on the issue, the author argues that the FCC's judgement is inconsistent with its own jurisprudence, and the case substantially unsuited and unwisely chosen for rendering the ultra vires verdict for the first time. Moreover, the judgement completely disregards the primacy of EU law, which not only questions the equality of EU Members but ultimately jeopardises one of the most crucial principles of the Union.
- ItemRestrictedA different way of saying: On stories, text, a critical legal argument for contractual justice and the ethical element of contract in South Africa(2005) Barnard, A JThis article takes a critical approach to South African contract law. Employing the post-modern concept of narrative truth it is argued that one can extract from the South African Law Commission's texts on Unreasonable Stipulations in Contracts (at least) four stories about the South African law of contract. These stories are those of certainty, resistance, equity and the story of the text. The story of the text (i.e., a fully legislated and delineated equity jurisdiction in contract law) was the one recommended to Parliament by the Law Commission. Parliament has however indefinitely suspended the reformative narrative since the Commission's Report was tabled. The author argues that the courts have failed to take issue with the suspension of the (reformative) narrative. Contract law still tells the story of certainty and predictability In (a tentative) conclusion it is argued that, although the stories generated by the Law Commission's investigation are organised along inescapable dualities, the (political) focus in global contract law has moved to an emphasis on the ethical element of contract. The article concludes with the writer's story, which argues (with reference to the work of Drucilla Cornell and Karin van Marle) for an ethical approach to contract which supports the concepts of communicative freedom and Cornell's exposition of the relationship between Kantian freedom and dignity. The writer's story concludes that the emphasis on the ethical element of contract enjoins contracting communities to engage in deliberative (story-telling) practices which cannot await the story of the law. Finally, issue is briefly taken with the reasons why this is a critical legal argument.
- ItemOpen AccessA look at victim experiences of cybercrime in South Africa and whether the current legislative framework is equipped to deal with this issue(2024) Smit, Savannah Tuscany; Moult, KelleyCybercrime has become extremely prevalent in society. It is an indiscriminate form of crime that permeates all levels of society. This is especially true after the COVID-19 pandemic which resulted in individuals becoming increasingly reliant on technology for everyday tasks such as working, shopping and connecting with their loved ones. Cybercriminals have taken advantage of the increased use and reliance on technology and have targeted individuals via various online platforms. Based on data collected through an anonymous online survey, this research examines victims' experiences of cybercrime and the response to this crime, including whether participants were aware of the legal remedies available to them and how to report that they had been a victim of cybercrime. The data shows that victims are reluctant to approach the authorities to report cybercrime as they are uncertain who to report to. Those that experienced financial crime approached their bank but others, who experienced other forms of cybercrime, were afraid that they would not be taken seriously by the authorities. Furthermore, it became evident that participants were not aware that South Africa has legislation, namely the Cybercrimes Act 19 of 2020, in place to provide for the prosecution of cybercrime. Where participants were aware of the legislation, it was predominantly as a result of being informed about it at their educational institutions. The study concludes that cybervictims have a lack of confidence in the authorities ability to deal with cybercrimes and do not feel the current legislative framework in place in South Africa is sufficient to address the issue of cybercrime.
- ItemOpen AccessA new sphere of vigilantism in South Africa in the age of social media? Operation Wanya Tsotsi- an analysis of prospects for collaboration with the Police(2021) Kral, Svenja Julie; Phelps, KellyThere are many studies in South Africa that have analysed the definition of vigilantism with a focus on the historical background of the apartheid era. However, research in the field of vigilantism in South Africa has been lacking since the advent of the internet, even though social media has spawned a new form of vigilantism – online shaming. Considering that online public shaming has become prevalent both globally and locally, the focus of this dissertation is the public exposure of people alleged to have committed crimes. The paper shows that small changes to the method of public shaming could enable collaboration with the police. To illustrate this argument the example of Operation Wanya Tsotsi, an online vigilante group, is used. By examining their Facebook page in light of current criminal law remedies, this paper establishes the extent to which their method is problematic and illegal. In addition, it gives an example of what successful collaboration with the police could look like and underlines the advantages and disadvantages of such collaboration. Ultimately, it concludes that Operation Wanya Tsotsi should focus on legal online work to support the police in the fight against crime.
- ItemOpen AccessA pot of gold at the end of the rainbow: Subsistence cannabis cultivation in the changing legislative context in South Africa(2021) Fortune, Kelly; Howell, Simon; Hübschle, AnnetteCannabis cultivation is documented as a long-standing practice in Africa and Southern Africa specifically (Paterson 2009, Crampton 2015, Duvall 2019, Khan 2015, United Nations Office on Drugs and Crime 2019). The growing of cannabis is concentrated in three African regions; Pondoland in South Africa, the Mokhotlong district in Lesotho and the Hhohho district in Swaziland, with the majority of farmers growing the crop for subsistence (Crampton 2015:57). Cannabis thus holds significant value in supplementing incomes and sustaining livelihoods, especially of cultivators. Considering their geographic and economic positions, the contribution of cannabis to the livelihoods of those who live in the poorest parts of the country is great, yet has been largely ignored (Kepe 2003:605) despite the changing legislative context of cannabis law in South Africa. Moreover, as changes to the legislative framework emerge and the cannabis legalisation debate deepens, one is challenged in locating the voices of the rural farmers who have cultivated cannabis for generations. As an important source of information, they appear to be left out. What are their views? Are they for or against legalisation and why? What are the perceived impacts of legalisation on their continued production of cannabis? In an attempt to garner and understand their views, needs and concerns, this thesis aims to showcase these, and further open up a small window of opportunity to relay the voices of the seemingly voiceless. It emphasises that, without their voices, a nuanced legalisation debate and support for a holistic, progressive, informed, sustainable legislative framework will be tainted.
- ItemOpen AccessA Priority Crime that is not a Priority? The Illegal Cigarette Trade: A Case Study of Mowbray(2019) McLaggan, Michael Taylor; Moult, KelleyObjective: To determine how prevalent the illegal trade in cigarettes is in Mowbray, whether buyers thereof are aware of the illegal nature of their purchases, and whether they would transition to buying legal products if they became aware of the illegal nature of their purchases. Methods: Observations of stores throughout Mowbray were used to determine which stores sold illegal cigarettes, using price of packs of cigarettes as a determinant for illegality. Surveys were conducted using smokers in Mowbray as subjects in order to understand preferences of these subjects in terms of which products they bought and at which type of store they bought from. An interview was conducted with a Brigadier of the Directorate for Priority Crimes in order to understand how illegal cigarettes are policed in the country. Results: The research shows that cigarettes in Mowbray are very accessible and popular amongst consumers. It further demonstrates that most consumers of illegal products are aware of the illegal nature of their purchases and would not transition to legal products if it meant paying higher prices. Conclusions: The prevalence of illegal cigarettes is a result of the failure of state institutions to adequately address the issue. The popularity amongst consumers stems from the high availability of illegal cigarettes and the low prices thereof. Responses of state institutions tasked with addressing the illegal trade are essential in order to combat the trade.
- ItemOpen AccessA reappraisal of the roles and relationships of neighbourhood watches: an investigation of selected neighbourhood watches in the Athlone and Annenberg areas in Cape Town(2024) Davis, Brandon; Kinnes, Irvin; Mguzulwa, SisandaThe Neighbourhood Watch (NW) is a pervasive phenomenon that has gained footholds in many countries around the world. South Africa is no exception and, in the case of Cape Town in the Western Cape Province, they have proven to be a popular choice among the members of civil society as a method of dealing with crime. In the Cape Flats region of Cape Town, conventional state policing agencies (namely SAPS) have failed to deal with the high rates of crime – one of the reasons for the popularity of NWs. Civil policing structures are by no means a new phenomenon in South Africa, and the concept of the NW has been in existence for decades, yet not much academic research has focused on their evolution over the years – particularly those that exist in the Cape Flats region. Using a nodal governance framework, specifically that of nodal policing, this dissertation explores the evolution of their roles, and the relationships or networks they formed (or lack thereof) over time in the battle to reduce crime and to create safe and secure communities. Indeed, numerous studies have been conducted on policing in South Africa for many decades, and some have focused on non-state policing structures in the country. In doing so, they have briefly discussed NWs, however there are few comprehensive studies that have focused solely on the NW and discussed how they have evolved over time. This study addresses that particular gap in the literature. A qualitative study was conducted and members of three different NWs on the Cape Flats located in different areas (two from the Athlone precinct and one from the Manenberg precinct) were interviewed in three separate focus group interviews. The NWs selected for this study were the Bridgetown and Silvertown NWs (Athlone precinct) and the Surrey Estate NW (Manenberg precinct). Importantly, a precinct is a defined district or region of a city which consists of multiple areas (South African National Treasury, 2014:np).
- ItemOpen AccessA Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender person's Constitutional rights to dignity and equality?(2020) Sloth-Nielsen, Rachel; de Vos, PierreThis dissertation will attempt to answer question whether, in terms of the right to dignity in s10 and the prohibition of unfair discrimination in s9 of the South African Constitution, the State must recognise in law a third gender for transgender individuals who do not identify as either male or female. It does so, first, by asking whether the failure by the state to provide for the legal recognition of a third gender violates transgender person's right to dignity. Second, the enquiry proceeds to discuss whether s9(3) of the Constitution (which prohibits unfair discrimination on any ground, including on the listed grounds of sex, gender and sexual orientation) requires the state to recognise a third gender. After discussing the lived experiences of transgender persons in South Africa, the thesis reviews the terminology and concepts relevant to this area of study, in order to lay the foundation for the subsequent examination of relevant case law, the Constitutional Court's approach to dignity, and the analysis of the application of s(9)(3). I submit that transgender persons fall within the Constitutional Court's definition of a vulnerable group in that they have suffered past patterns of disadvantage, they constitute a minority in South Africa and are subject to stereotyping and bias. Despite the Constitutional Courts erroneous pronouncement that transsexualism falls under the umbrella of sexual orientation, it is argued, rather, that since the expression of their gender identity by gender nonconforming persons shares many of the characteristics of the specified grounds listed in s9(3), unfair discrimination can be found on a ground analogous to those grounds listed in the Constitution. The failure to allow for recognition of a third gender is thus under-inclusive. It cannot be justified under the limitations analysis. Further, if objections were to be raised by the state that recognition is not feasible or affordable and is, hence, justified, I conclude that because there are ways to accommodate individuals who do not identify as binary which are not unduly taxing on the State, this argument would fail.
- ItemOpen AccessAbout the constitutionality of mandatory minimum sentences(1995) Oppert, Anna; van Zyl Smit, DirkAs difficult as the task of reaching a reliable verdict may be, the second half of a criminal court's procedure, that of imposing sentences on those who have been found guilty or who have themselves admitted their guilt raises even more fundamental questions. What are we trying to do, what is the object of this exercise? Traditionally there have been four approaches to the sentencing of an offender which correspond to the four "objects" or "purposes" of sentencing, namely retribution, rehabilitation, deterrence or incapacitation, i.e. the offender should be punished for the crime; the offender should be punished to be given the opportunity to return "onto the right track"; the offender (individual deterrence) or others (general deterrence) should be deterred from committing similar crimes in the future; and, finally, the offender should be incapacitated, i.e. be prevented from repeating crimes.
- ItemOpen AccessAccess to justice by refugees and asylum seekers in South Africa(2011) Okpechi, Abiola; Chirwa, Danwood Mzikenge; Burman, SPremised on the fact that access to justice is essential, if rights are to be actually enjoyed, this thesis set out to examine the extent to which refugees and asylum seekers are able to access justice in South Africa, both for the enforcement of their rights and to settle disputes or other interests at law. In doing this, the thesis examines the obligations that South Africa owes to refugees and asylum seekers on access to justice, and how it gives effect to those obligations.
- ItemOpen AccessAddressing child poverty: Is Ugandan law and policy fit for purpose?(2014) Kyobutungi, Diana; Calland, RichardResearch 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.
- ItemOpen AccessAddressing Legal Liability Issues in Cases of Harm due to Agricultural Genetically Modified Organisms (GMOs): Does current liability law find a suitable balance between the injuring and injured party?(2010) Roschauer, Oliver; Kinderlerer, Julian; Milius, DjimsIn 1973, the first creation of recombinant bacteria, E. coli, allowed for gene engineering. After this development, it was possible to create a genetically modified organism (GMO) by adding a new gene into an organism's genome. A short time after this invention, the commercial value of these genetically modified products was discovered which resulted in the establishment of biotechnology companies. Nowadays, GMOs have a wide application in biological and medical research, production of pharmaceutical drugs, experimental medicine and agriculture.
- ItemOpen AccessAddressing Sexual Offences in South Africa: Moving Past Rhetoric and Empty Gestures(2021) Stander, Abigail; Phelps, KellyThere is a plague of sexual violence in South Africa. As a country dedicated to the rights to life, dignity, bodily integrity, privacy and the right to be free from all forms of violence, it is the government's duty to adequately address the rate of sexual offences in the country. The government has not been silent on this issue, but its response beyond issuing strong statements accompanied by long sentences for the few offenders convicted, is lacking. Some important legislative changes have been brought about in the SORMA but without widespread change of social attitudes these improvements are going to have very limited impact. This paper explores why South Africa's current approach towards sexual offences is inadequate and how it should be improved. The first section lays out the background and development of South Africa's sexual offence laws (and laws relating thereto). The myths and stereotypes about sexual offences and their victims that prevailed in our legal system for decades, still persist in the minds of many police and judicial officers today. This has negatively affected how sexual offences are policed in the country. It begs the question of whether victims should be afforded specific rights in sexual offence cases. This section also discusses how mandatory minimum sentences came about as a response to rising crime rates. While the changes to the law have been praised for being more progressive for victims of sexual offences, its actual impact will remain insignificant until procedures for obtaining justice for victims are improved. The next section critiques the current legal framework relating to sexual offences, namely, the SORMA and the Criminal Law Amendment Act 105 of 1997. Legislative changes such as the new definition of rape and the formal acknowledgment of sexual offences courts are promising. However, the establishment of the National Register for Sexual Offenders and the mandatory minimum sentences for rape were poorly researched solutions. This paper argues that since SORMA's approach has not improved the experience of victims in the past 13 years, either duties for police officers in sexual offence cases should be legislated or victims should be afforded specific procedural rights. The final section of this paper discusses feasible options for South Africa to address sexual offences. The first is in the form of structured sentencing guidelines to steer the discretion given to judges in handing down sentences. The second is in the form of prevention strategies. This paper highlights how important it is for the government to start to implement policies that will address the societal norms that allow sexual violence to flourish. The government's only solution cannot be to keep clutching at popular mandatory sentencing. They owe it to the citizens of South Africa to commit to long-term social change initiatives.
- ItemOpen AccessAdoption laws and procedures of Botswana: Questioning their effectiveness and compliance with regional and international human rights standards(2014-07-30) Sigweni, Sitheni Felicity