Browsing by Subject "public law"

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    A 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, Nurina
    The 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.
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    Constitutional but criminal: an analysis of the ambiguous abortion law in Kenya through the prism of international human rights
    (2024) Onyango, Kevin Robert; Ramalekana, Nomfundo
    Upon the inauguration of the Constitution of Kenya in 2010, women's reproductive health rights seemed poised to witness progressive guarantees that would be in line with international human rights standards – this has not been the case. On the one hand, the Penal Code of Kenya effectively criminalizes abortion. Conversely, Article 26(4) of the Constitution of Kenya, 2010 provides an exception to the general rule criminalizing abortion. Article 26(4) of the Constitution of Kenya provides that abortion is permissible only if a quali ied health professional deems an emergency treatment necessary, or when there is a discernible threat to the life of the mother, or if sanctioned by any other written law. Unfortunately, sections 158, 159 and 160 of the Kenyan Penal Code, which proscribe abortion, have not been amended to be in line with the Constitution of Kenya, 2010. The discordant legal framework has induced ambiguity and confusion regarding abortion law in Kenya. This thesis critically explores the evolution of abortion law in Kenya and analyses how the Courts have, in light of the ambiguity in the legal framework, adjudicated abortion cases. It examines what, if at all, are the human rights implications of criminalizing abortion. Relying on comparative research methodology, the thesis examines the abortion laws in South Africa and Ireland to provide insights on how Kenya can develop its abortion laws to better protect the rights of women and girls and adhere to its human rights obligations. Ultimately, the thesis argues that the inherent ambiguity within Kenya's abortion laws perpetuates the violation of women's and girls' rights and thus ought to be amended.
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    Defending women who kill
    (2022) Shaff, Maxine Leslie Georgia; Phelps, Kelly; Moult, Kelley
    This dissertation undertakes a case review of South African court case judgments (between 1994 and 2021) in which women are charged with killing their abusive intimate partners. The dissertation examines how evidence of their abuse is used in respect of legal defences and mitigation of sentence. In addition to analysing the existing legal framework, the paper presents thematic qualitative information drawn from the judgments to show that a number of themes are apparent in the manner in which evidence is brought and dealt with by the courts. For instance, patterns of disregarding evidence of abuse, and a lack of calling for further evidence where needed. In addition to this, judgments often 'play armchair expert' and show lack of sensitivity and compassion to abused women - this is tightly linked with the concept of victim blaming. Other themes include deterrence as emphasised in sentencing, the notion of a turning point during an abusive spell, the rights of the children involved in abusive relationships, and considering motives for retaliation. The paper concludes by arguing that a contemporary approach to private defence, in light of the developments made in the Engelbrecht case, ought to be the way forward in exonerating women of their criminal culpability where those requirements are met.
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    Developing a legal and institutional framework for witness protection in Nigeria: reflections from international perspectives
    (2020) Oyakhire, Suzzie Onyeka; Van, Der Spuy Elrena; Woolaver, Hannah
    'Witness protection' has been introduced in the criminal justice systems of several states worldwide as a recognised tool for facilitating the cooperation of witnesses and ensuring that concerns about their safety are not ignored. Although not a new phenomenon, witness protection praxis continues to evolve and remains largely undeveloped in many states. In Nigeria, the relevance of witness protection as a critical aspect of criminal justice administration is increasingly becoming evident. As an area of enquiry, scholarly literature on witness protection is descriptive, locally focused, and lacking in conceptual clarification. Recent developments in Nigeria highlight the need for the clarification of legal and conceptual issues within the existing legal framework for protecting witnesses. Using the Nigerian case study, this thesis illustrates the obscurities inherent in the concept of witness protection. These are highlighted around five critical areas: the definition of witness protection; the scope of beneficiaries requiring protection; the nature of crimes necessitating protection; the nature of protective measures; and the administrative control of witness protection. The thesis explores the concept of witness protection, which is still at an early developmental stage in Nigeria. In the absence of a clear legal jurisprudence, the thesis pieces together the practice of witness protection in Nigeria and embarks on a conceptual and legal clarification of issues important to developing a witness protection framework. To achieve this, the thesis draws from international debates, legal developments and institutional practices from other jurisdictions as a basis for improving Nigerian efforts in witness protection and for making normative proposals to that effect. The thesis utilises two distinct perspectives: the criminal justice and the human rights perspectives as heuristic tools for analysing the concept of witness protection and to separate the disparate influences that shape how it is construed. A combination of desktop research by way of doctrinal research and empirical research was adopted. In pursuit of a more detailed understanding of contemporary developments relating to witness protection in Nigeria, field research was undertaken. This comprised qualitative research using semi-structured interviews of a specifically selected sample of criminal justice experts and practitioners with knowledge about witness protection in Nigeria. The semi-structured interviews justify the assumptions that there is a need to examine and clarify the scope of witness protection and what it depicts. The thesis finds that the concept and practice of witness protection evolved within specific parameters and its definitions are determined within these limits. It advances the existing witness protection conversations by offering an analytical basis for discussing witness protection and proposes organising principles for delineating the scope of witness protection. The clarifications made in the analysis within this thesis are utilised in making normative proposals and policy recommendations for developing a legal framework for witness protection in Nigeria. The thesis recommends a formal witness protection framework, through the enactment of comprehensive witness protection legislation that clearly defines the objectives of witness protection, the scope of beneficiaries, the scope of crimes necessitating protection, the type of protective measures and guidelines for assigning these measures, clear eligibility criteria and which establishes an independent witness protection agency to administer witness protection in Nigeria.
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    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.
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    Ending childhood statelessness by 2024: a consideration of South Africa's laws and policies in light of the United Nations High Commisisoner for refugees #ibelong campaign
    (2024) Sader, Shazia; Lutchman, Salona
    There are approximately 10 million people globally that are Statelessness and there are several reasons for why children in South Arica are stateless. One of the major causes of statelessness is due to the gaps in laws, policies and practices that deny an individual the right to a nationality, at birth or later in life. Stateless children do not hold a nationality and as a result they are marginalised and faced with difficulties in gaining access to basic human rights and are denied access to services such as education, healthcare, and social grants, due to not having a valid legal identity. This research paper has identified that the children of refugees, asylum seekers and migrants in South Africa are vulnerable and at a particular risk of statelessness due to a denial of birth registration and other reasons. Since 1974, the United Nations High Commissioner for Refugees (UNHCR) has been tasked with working together with governments to prevent statelessness, to identify and reduce statelessness situations, and to protect people who are recognised as stateless. In November 2014, UNHCR launched the #IBelong Campaign to End Statelessness which advises on 10 actions that States should implement by 2024 in order to eradicate statelessness and to ensure that policies and practices are brought in line with the Global Action Plan to End Statelessness. Out of the ten actions to end statelessness, this research paper focusses on the following five actions: 1. Ensure that no child is born stateless. 2. Accede to the UN Statelessness Conventions. 3. Ensure birth registration for the prevention of statelessness. 4. Issue nationality documentation to those with entitlement to it. 5. Grant protection status to stateless migrants and facilitate their naturalization It is unclear whether South African law, policies and practices comply with the five actions identified above. These actions are pivotal to the eradication of childhood statelessness, because as mentioned above, statelessness has a devastating impact on children. Therefore, this dissertation is concerned with the following: Given the commitments made by South Africa to end statelessness by 2024, has South Africa in the past ten years: a. Undertaken law reform to address the gaps in laws and practices to prevent childhood statelessness in terms of the five identified actions? b. Regressed in terms of its domestic laws and practices with respect to these five actions, consequently perpetuating childhood statelessness?
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    Government accountability is in our hands: utilising tech-enabled methodologies to give citizens the power to monitor the implementation of the regulation relating to sexual offences courts
    (2021) Venter, Tatum; Moult, Kelley
    Given the high incidence of sexual offences in South Africa, effective implementation of legislation aimed at assisting and alleviating the plight of survivors is paramount.1 In February 2020, the Regulation Relating to Sexual Offences Courts (the Regulation) was promulgated. The Regulation provides for the creation of Sexual Offences Courts (SOC) as well as the specialist facilities and services which must be present, there are currently 106 designated courts in South Africa. If properly implemented, the Regulation has far-reaching potential to assist survivors, increase convictions and alter society's perceptions of these offences.2 Monitoring the implementation of the Regulation in Sexual Offences Courts to hold the government accountable and ensure these objects are achieved is of the utmost importance. This pilot study, which was part of an existing project being conducted by a coalition known as Shukumisa, aimed to determine whether an online tool can successfully allow citizens to monitor and collect reliable information on Sexual Offences Courts. In essence, the study built on previous (low-tech, pen-and-paper) attempts to monitor compliance by creating a tech-enabled data collection tool which enabled citizens who are already working within SOCs to monitor the implementation. Overall, the tool was able to successfully monitor the implementation of the Regulation in SOCs and build on previous monitoring projects. With online training, the participants were able to use the tool and effectively monitor the eleven courts in metropolitan as well as outlying areas. The tool had the ability to not only allow monitoring but empower the participants with information and education in an easy and accessible way. With a few minor improvements, it is recommended that the monitoring tool should be rolled out and used to monitor the compliance of every SOC, to hold government accountable to maintain their successes and improve on their downfalls
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    How feminist legal theory can help to safeguard the rights and interests of disadvantaged women and girls during crises: lessons from the COVID-19 pandemic and South Africa
    (2024) Pitt, Jordan Chloe; Lutchman, Salona
    Periods of global and national crisis have a tendency to upend progress made with respect to women's and girls' equality. Laws and policies created during these periods, seemingly neutral on their face, are often hastily constructed in a bid to ensure swift crisis management and an amelioration of immediate harm. These policies, however, fail to take into account the unique lived realities of women and girls, in general, and disadvantaged women and girls, in particular. Such oversight results in the unfavourable inevitability that they will be prevented from enjoying rights and freedoms on an equal basis with men. The COVID-19 pandemic represents a manifestation of such a crisis scenario as the measures employed by governments to deal with the virus have resulted in the exacerbation of already-existing gender inequalities, risks and vulnerabilities. This dissertation seeks to investigate South Africa's response to the COVID-19 pandemic as a case study of a crisis and the adverse impact of this response on the rights and interests of disadvantaged women and girls in the country. A feminist lens, in the form of Feminist Legal Theory, is used to elucidate this disproportionate impact. In order to assess and evaluate South Africa's response, this dissertation analyses the obligations that are placed on State parties to ensure the protection of women's equality during crises as they are contained in regional and international human rights instruments. With a particular focus on the Convention on the Elimination of Discrimination Against Women, the Maputo Protocol and the recommendations of their respective institutional bodies, this dissertation finds that there is a clear duty on State parties to take positive steps to implement and create gender-responsive mitigation measures to ensure that virus-containment strategies do not result in discrimination along gendered and socioeconomic lines, albeit indirectly. Having regard to these obligations, this dissertation finds that South Africa has failed to adequately safeguard the rights of its women and girls during this crisis. The government's mitigation policies in various sectors were either absent, gender-blind, or not sufficiently responsive so as to ensure adequate protection of the rights of women and girls as a heterogenous group. Lessons gleaned from South Africa reveal a pressing need for the inclusion and amplification of the voices of the most vulnerable in future crisis decision-making.
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    Imagining ‘possible selves’ as an intervention strategy for incarcerated youth
    (2019) Fernan, Tess; Van Der Spuy, Elrena
    This minor dissertation involves exploratory research by way of in-depth qualitative interviews with two past juvenile offenders exploring the idea of 'possible selves’ as an intervention strategy for incarcerated youth. The participants share experiences of their own incarceration as juveniles as well as insights gained through their recent working experience with incarcerated youth. This study concerns itself with risk and resilience factors relating to offending behaviour. It is acknowledged that there has been a recent shift in criminological debates with a greater focus on primary prevention efforts in building resilience to anti-social behaviour in a child’s formative years. However, the current study is focused on secondary prevention efforts with a specific focus on incarcerated youth. The well-developed body of work on risk factors is consulted which determines criminal victimisation, family violence, school violence, structural violence in the form of poverty and institutional violence in the form of incarceration as key factors which may contribute to offending behaviour. Acknowledging that the attention to date has largely focused on what past factors may influence or contribute to a criminal trajectory, this study shifts the focus to the idea of 'possible selves’ and the potential that future expectations, fears and hopes can have on preventing further offending behaviour. 'Possible selves’ is a social-psychological construct initially devised by Markus and Nurius in 1986. It is largely an under-developed area of research with only a few key studies undertaken and limited application to delinquent and incarcerated youth. Findings have however indicated that 'possible selves’ do have the ability to influence present and future behaviour, particularly when balance (i.e. goals and fears are developed in the same life domain) and feasible strategies to achieve desired selves and avoid feared selves are developed. Youth offending in the South African context is reviewed to explore the current climate and determine the extent of current interventions focusing on the re-integration of incarcerated youth offenders both during and post-release. The empirical component of this study produced findings across five key themes being risk factors present prior to incarceration, the nature of possible selves of incarcerated youth, the impact of incarceration, possible selves are limited by context and the self and implications for practice of a 'possible selves’ intervention.
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    International child abduction parental child abduction to non-Hague countries: where the law is incomplete
    (2024) Moerat, Nadia; Lutchman, Salona
    At the forefront of human rights atrocities in recent years is the subject of the abduction of women and children, most commonly and distressingly encountered in cases of human trafficking and in more recent years increasingly found in the abduction of youngsters in war-time conflict. A surprising number of abductions are however perpetrated by parents or family members, an area seemingly sufficiently governed by the United Nations Convention on the Civil Aspects of International Child Abduction wherein the Convention offers a quick result in the immediate return of a child to the country of habitual residence. However, little to no similar efficient legal remedy is currently available to parents or legal guardians in the instance where their child is taken to a non-Hague country. This paper endeavours to analyse and compare the legal mechanisms employed in South Africa to retrieve children abducted to non-Hague countries by relating South African laws and legal process to legal practices applied in other States in similar situations and further assessing what, if any, effective enforcement mechanisms can be found in international and regional legal instruments. In particular custody laws of Islamic States are considered in relation to western concepts of custody and rights. In doing so, the comparative analysis seeks to examine which areas within the national and global legal system may require further attention and possible improvement whilst acknowledging the significance and role of the child’s best interest and the duty of care owed by the State to protect those interests.
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    Is the emotional security of children adequately safeguarded in South African divorce law and procedure? An appraisal of how divorce law and procedure in South Africa can be adjusted to fully cater to and protect the emotional security of children during divorce proceedings
    (2024) Chimwendo, Tamanda; Lutchman, Salona
    Children, defined as those below the age of 18 by article 1 of the 1989 United Nations Convention on the Rights of the Child (CRC), are a particularly vulnerable group as a result of their limited legal capacity and autonomy. As a consequence of this, legal rules and procedure in domestic jurisdictions as well as internationally have been developed to specifically protect the interests of children in any and all matters involving children. Divorce, while ordinarily an action involving those with full legal capacity, can be a matter involving children should there be children of the dissolving marriage. Therefore, there is an obligation grounded in the best interests of the child principle, (provided for by article 3 of the CRC), to develop divorce law and procedure in a manner that highlights and protects the best interests of children. The best interests of the child, as per the 2013 General Comment no. 14, is a multifaceted principle, rule, and independent right involving various elements. Given that an expected and significant effect of divorce on the children of divorce is an emotional toll and a state of emotional insecurity, the focus of this research is the development of divorce law and procedure highlighting and protecting the best interests of the children with a specific focus on the emotional security interest of the child. The main argument of this paper asserts that current divorce law and procedure in the Republic of South Africa does not adequately protect the emotional security interest of children on the threshold placed by international law standards, by the South African constitution, and by domestic South African legislation
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    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.
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    Participatory constitutional reforms vs. realization of equal representation of men and women in the parliaments: a study of Kenya, Rwanda and Tanzania
    (2019) Lihiru, Victoria Melkisedeck; Amien, Waheeda
    In this thesis, the constitution-making legal frameworks in Rwanda, Kenya, and Tanzania are examined in relation to how they facilitated public participation in line with Article 25 of the International Covenant on Civil and Political Rights, 1966 and Article13 of the African Charter on Human and People’s Rights, 1986. In line with Articles 4 and 7 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, and Article 9 of the the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, the thesis gauges the level and impact of women’s participation in the constitution-making processes in furthering equal representation of men and women in parliaments. Findings contained in this thesis are informed by primary data from international, regional and national legal frameworks relating to participation in political decision-making processes and are supplemented by secondary data from credible reports, journal articles and books. Analysis of the colonial and early postcolonial constitutional formations depicts imposition of the constitutions by the colonial governments in consultation with a few African political elites. Generally, the colonial and early post-colonial constitutionmaking processes were founded on weak legal frameworks, denying the public, including women, the right to take part in constitution-making processes. The onset of international and regional conventions slowly influenced the opening of the constitution-making processes to the public. The 2003 Rwandan Constitution, 2010 Kenyan Constitution, 1977 Tanzanian Constitution and the subsequent stalled 2014 Tanzanian Proposed Constitution were founded on moderate strong legal frameworks allowing some level public participation. In terms of facilitating women’s participation, these frameworks suffered shortcomings in several aspects particularly in composition of constitution-making organs, access of uneducated and rural women and ensuring substantive participation by women. However, the 2003 Rwandan Constitution, the 2010 Kenyan Constitution, the 1977 Tanzania Constitution and the 2014 Proposed Draft Constitution of Tanzania contain equality and non-discrimination provisions. When it comes to women’s participation in parliaments, the definition of equality is equated to a percentage (mostly 30 per cent), which does not represent the meaning of equality. An increased number of women parliamentarians in the Rwandan, Kenyan, and Tanzanian Parliaments, has enabled the legislation of gender sensitive laws and policies in the areas of inheritance, gender-based violence, family law and land rights. However, there are many areas in which women parliamentarians fail to represent the real interests of women. Challenges related to the practice of first-past-the-post and proportional representation electoral systems and the practice of temporary special measures continue to hinder the realisation of equal representation of men and women in parliaments. Rwanda, Kenya, and Tanzania should adopt the equality-based proportional representation electoral system. Short-term recommendations are provided based on the contextual differences and uniqueness of each country under study namely Rwanda, Kenya and Tanzania.
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    Policing across divides: a comparative study of police practices in Nyanga and Sea Point
    (2024) Schick, Cornelius Georg; Kinnes, Irvin
    This master's thesis presents a comparative analysis of police practices in two socio-economic areas of Cape Town, South Africa: Nyanga and Sea Point. The study explores how socio-economic status and crime burden influence policing strategies and how these factors contribute to reinforcing or alleviating social inequalities. The research utilises a qualitative approach, in-depth interviews with police officers provide a nuanced understanding of the dynamics at play. The study finds that policing practices in Nyanga, an area characterised by low socio-economic status and high crime rates, are predominantly reactive, with a strong focus on crime suppression. While addressing immediate safety concerns, this approach inadvertently perpetuates a cycle of mistrust and alienation between the police and the community. In contrast, in Sea Point, an area with higher socio-economic status and lower crime rates, policing is more proactive and community-oriented. This strategy fosters a positive relationship between the police and the residents, enhancing trust and cooperation. The thesis demonstrates that socio-economic factors and crime burden indirectly influence policing practices by affecting crime patterns and community-police relations. The findings emphasise the necessity of a more comprehensive approach to policing that takes into account underlying socio-economic factors and prioritises community engagement, particularly in areas with higher crime rates and lower socio-economic status. This research contributes to the ongoing discourse on policing and social inequality. It provides insights into how different approaches can either mitigate or exacerbate the underlying socio-economic disparities within urban communities.
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    Practitioners' discourse of juvenile delinquency at a child and youth care centre in the Western Cape from 1990 to 2020
    (2024) Swanepoel, Loulou; Kinnes, Irvin
    This paper examines the evolving discourse of juvenile delinquency among practitioners who documented their observations and interactions with juveniles from a Western Cape Child and Youth Care Centre. It employs the Foucauldian discourse analysis approach when analysing the content of thirty learner casefiles from 1990 to 2020. The discourses are analysed in terms of shifts in power over the institutional care of the children brought on by the new democratic government, childcare and justice policies, and the coinciding growth of the restorative approach to juvenile justice. The discourse themes examined include how practitioners consistently conceptualised the juvenile and their delinquency across the thirty years. This was seen in terms of the juvenile's medical health, their ‘criminality', substance use, gang involvement, and tendency to abscond. The juveniles' history of alternative care placements was also frequently documented. Practices eclipsed by the democratic government and restorative justice movement include punitive forms of punishment at the facility and the need for documentation of the child's race. However, only after the enactment of the Children's Act no.38 of 2005, as amended (2010), did a restorative approach to juvenile care, outside of education and vocational training, take significant precedence.
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    Sexual offenses on campus: Challenges in the disciplinary system
    (2021) Isaac, Chyanne; Smythe, Deirdre
    Gender Based Violence (GBV) is not just an institutional problem but a global one. Higher education institutions have come under fire for inadequate policies and processes to address sexual violations on campus. Despite progressive policy revisions and advocacy at South African universities over the years, there is no indication of either a reduction in the number of cases or an increase in confidence in institutional responses to sexual offences. This dissertation reviews the sexual offences policies and procedures at six South African universities and highlights the challenges in the university student disciplinary process. Drawing the distinction between a criminal trial process and administrative hearing process, I make recommendations for procedural changes to the university disciplinary process that protects the complainant in a sexual offences case from unnecessary trauma during hearings.
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    Steroids in the gym: the law, strong bodies and masculinity in South Africa
    (2021) Mashasha, Tamsanqa Munyaradzi; Morrell, Robert
    We know little about the use of steroids in the fitness industry in South Africa although the media frequently features stories about sportsmen who are charged with illegally taking steroids and subsequently issued with bans against continuing to participate in competitive, professional sport. In this study I examine the status of steroids in terms of pharmacology and the law. Steroids is a shorthand for Anabolic-Androgenic Steroids (hereafter AAS). As I show, these substances are evolving compounds with important medical utility but also with the capacity to rapidly build muscle and strength. It is for this reason that they are used in competitive sport but also in the fitness industry where strength and bodily appearance tempt people, mostly men, to take AAS. AAS are defined as a drug and thus cannot legally be bought without a prescription or overthe-counter. But for a number of reasons the control of AAS by regulatory authorities is weak. There are many laws that refer to AAS but these laws overlap and produce inefficiency and consumer confusion. In this grey area, AAS operate as an element of the country's gym culture. The gym as a space for fitness activities has become exceptionally popular in the last few decades. Gyms are primarily a middle class institution, attracting men and women of all races. The desire to get fit and strong and look good is strongly supported by media campaigns. For many men, particularly those that attended sports-focused, single-sex schools, the connection between a fit, strong and good-looking body is an extension of sports participation. For some young men, the habit of taking supplements as part of a fitness regime starts during the school-going years. The line between supplements and AAS is not always clear. This study included a survey of male gym-goers in East London and Cape Town. The survey asked questions about a knowledge and use of AAS and linked these questions to issues of masculinity. The survey was augmented with one-on-one interviews with gym-goers. This primary research is used in a chapter to investigate AAS use amongst gym goers. This thesis compiles and analyses pharmacological and legal material that defines and regulates AAS. To our knowledge this is the first academic work to attempt to understand AAS, their regulation and therefore their accessibility to the public. It shows that because the development of AAS is ongoing in the drug industry, definition is not easy and this, together with the absence of a coordinated set of laws which bear on the production, sale and use of AAS, results in grey areas of uncertainty. The final part of the study is based on a survey of 150 gym users and interviews with a select group of gym users known to the author. Using insider knowledge (the author is himself a gym-user) 30 interviews were conducted. The interviews explore the path along which young men travel as they develop their bodies. This path involves ideas of fitness and strength and these are bound up with the construction of masculine identity. The interviews help to explain why young men seek strong bodies and fitness and why some of these men take or have taken AAS. The thesis argues that the allure of AAS is that it allows young men quickly to build muscle and strength and thus to realize bodily aspirations that are built by the popular media and supported by peer groups. Sport participation is often, but not always, a feature of the bodyfocussed approach to performing a masculine identity. The lack of clarity regarding AAS is a contributing factor to gym-goers using steroids. Steroids can easily be purchased, are widely used and prosecutions for leisure use are unheard of giving the impression that they are not illegal.
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    The case for assisted dying/euthanasia in specific cases in South Africa with reference to the development of the South African and Canadian Jurisprudence under a human rights political order
    (2022) Brink, Raphael Grant; Cheadle, Halton; Schwikkard, Pamela Jane
    In this thesis, I argue that the present jurisprudence, particularly constitutional law and the common law of South Africa all lend support to the case for decriminalising physician assisted suicide through invoking a right to die with dignity (RDD). This argument is foundationally premised on the clear jurisprudence of the Constitutional Court which sets out the right to dignity and the value of dignity as the touchstone of the South African Constitution. The historical origin and development of the idea of dignity are traversed as well as how this idea found its way to the heart of our constitutional jurisprudence. The study then expounds on the similarities between the South African Constitution and the Canadian Charter of Rights and Freedoms and by comparing each of their Limitations Clauses proceeds to demonstrate how our Constitutional Court may follow analogous principles and reasoning to decriminalise physician assisted suicide by taking a similar approach to that taken in the Supreme Court of Canada. The argument is developed to posit that the South African Constitution with its emphasis on dignity allows for an even more compelling rationale for the decriminalisation of assisted suicide than was available to the Supreme Court of Canada. This thesis also analyses in some detail the present position of assisted suicide at common law and argues that when properly understood, though the legal position is confusing and contradictory, the common law is not in conflict with the potential decriminalisation of physician assisted suicide. Having clarified the present legal position and avenues for the development of the law, the main ethical arguments which inform and underlie the good morals which in turn underlies public policy, the so-called boni mores are considered. The point is made that the boni mores underlies our common law, and when this changes over time, our common law should follow suit. Having concluded that a key element of a decriminalised regime must include sufficient safeguards to protect the weak and vulnerable in our society, an analysis of the law in jurisdictions that have decriminalised physician assisted suicide and/or physician assisted euthanasia is undertaken which in turn culminates in a draft of proposed legislation for South Africa. The thesis points to studies which suggest that the experience in jurisdictions that have enacted a permissive physician assisted suicide regime has been largely positive. People in those jurisdictions who have explicitly chosen to exercise the right to die with dignity have avoided finding themselves in the inhumane condition of being compelled against their will to suffer interminably and unnecessarily. Whilst permissive legislation where available has succeeded in the aforesaid, such legislation does not appear to have resulted in a drop in the overall protection of human rights and the exposure of the vulnerable to harm, as was argued would be the case by those who have historically opposed physician assisted dying legislation. These facts which have become available from early-adopting jurisdictions for several decades now, and from ever more jurisdictions as physician assisted dying legislation is being ever widely passed, now show that the greatest fears of opposers have not come to pass. The study concludes that taking all of the above findings into consideration there appears to be a favourable legal framework and a preponderance of evidence to support a right to die with dignity in South Africa.
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    The constitutionality of the Disaster Management Act and the Covid-19 regulations enacted thereunder: does this regulatory regime contravene the right to just administrative action?
    (2022) Nchodu, Dimakatso; Kohn, Lauren M
    his paper covers the constitutionality of the Disaster Management Act known as the Covid19 regulations. It will argue that to keep in line with an open and transparent government in a participatory democracy, we needed a more open and public regulation making process which was less truncated. It argues that had all communities been consulted in the making and enforcing of lockdown regulations there would have been more adherence and less lives lost. Furthermore, because Covid-19 regulation-making is administrative action, had more procedural fairness and participation been included in the process then the right would not have been breached. I will then show that the process was irrational, unreasonable and unlawful, and that the executive used the DMA declaration to exercise powers of emergency and that the lockdown declaration was more a de facto state of emergency and not a state of disaster. I will then set out the socio-economic consequences of the lockdown on gender-based violence, women and children, and early childhood development learners, and how more public participation and giving effect to just admin action could have mitigated these effects. Furthermore, this not only makes this irrational and unconstitutional but also takes us back to Apartheid like powers being exercised by the executive.
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    The danger of the single legal story: the effects of international human rights legalization on land issues in Africa
    (2024) Matsinhe, David Mário; Luwaya, Nolundi
    The order of ideas herein presented constitutes a decolonial critique of the constraints inherent in international human rights law, upheld as the gold standard for safeguarding the rights of rural communities in the context of resource extraction within the African landscape. The objective is to render visible the constraints imposed by international human rights law on the capacity of international human rights organizations to advocate for the interests of African communities facing the adverse human rights implications of reckless corporate extractive operations. The exercise is based on an analysis of reports on resource extraction and human rights in Africa issued by prominent international human rights organizations, specifically Amnesty International and Human Rights Watch. This analysis locates these limitations within the coloniality of international human rights law, pursuant to the process of human rights legalization. For in practice, the legalization process has gradually and progressively reduced human rights into a monodisciplinary legal domain in which the multidisciplinary ode to human rights has been silenced. Whether intended or unintended, the multidimensional human rights story gave way to the prevailing single human rights story, within which human rights are knowable and visible in ways that matter only through the eyes of the law. As an instrument of coloniality, the legalization process has dismantled the intricate, decentralized, and all-encompassing global human rights rhizome, relegating it to historical obsolescence, and in its place, constructed the prevailing hierarchical, unitary, centralized, and exclusionary arboreal edifice of 2 international legal human rights. This reduction of human rights to a one dimensional legal framework has effectively silenced numerous indigenous voices globally, notably those originating from the global south. The prevailing arboreal paradigm must yield ground, allowing for the resurgence of a rhizomatic framework as the more equitable, tenable, decolonial approach.