Department of Public Law
Permanent URI for this community
Browse
Browsing Department of Public Law by Title
Now showing 1 - 20 of 36
Results Per Page
Sort Options
Item Open Access An analysis of States’ obligations towards climate displaced persons under the African Human Rights System(2022-07-15) Simango, Victor; Jegede, A. O.Climate change poses the most menacing threat to the environment today. The effects of climate change are experienced globally, and Africa in particular is one of the most vulnerable regions. One of the main consequences of changes in climate is the displacement of populations, mostly internally. Those who are forced to leave their places of residence due to the effects of climate change are often not specifically protected by both the United Nations Framework Convention on Climate Change (UNFCCC) and the subsequent instruments such as the Kyoto Protocol to the United Nations Convention on Climate Change and the Paris Agreement. However, under the African Human Rights System (AHRS), the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) which entered force is novel in its provision in article 5(4) on the obligation of State Parties towards persons displaced by climate change. While it is clear under international human rights law that states have the obligation to respect, protect and fulfil rights, whether these obligations apply, and if so, what the nature of their application means for climate displaced persons under the African Human Rights System is not clear. The study interrogates the basis and how obligations to respect, protect, and fulfil rights apply to climate induced persons in Africa.Item Open Access An analysis of the impact of the right to equality on the South African customary law and legislation(2012-12-10) Rapudi, Jonathan; Choma, Hlako J.; Maluleke, Life R.Item Open Access Children of asylum seekers and the realisation of social security rights in South Africa(2016) Lubisi, Tivoneleni Edmond; Jegede, A. O.; Letuka, P. P.The Constitution of the Republic of South Africa shows a clear and unambiguous undertaking by the state to develop a comprehensive social security system. In terms of Section 27 of the Constitution, it is provided that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The section also obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Parts of the social assistance are, inter alia, child related social grants in terms of the Social Assistance Act. This research considers the question of statutory exclusion of children of asylum seekers from accessing and exercising their social security rights, in particular, social assistance grants relevant to the needs, assistance and protection of children. Such grants are already provided for by the law to the South African citizen, permanent resident and refugee children. The question which this study seeks to address is whether South African government is in compliance with its constitutional and international obligations in respect of the social security rights and social assistance for children of asylum seekers in South Africa. This would be carried out by reviewing and exploring relevant International, regional and national human rights instruments relevant and applicable to the social security rights and assistance to the children of asylum seekers.Item Open Access Climate change regulatory framework and the protection of cultural rights in South Africa(2022-11-10) Maiwashe, Dzivhuluwani Rueben; Jegede, A. O.Climate change's severe consequences on cultural rights represent a clear threat to South Africa's development and progress. South Africa is affected by climate change, which is currently the world's greatest challenge. The link between culture and the negative effects of climate change has been proven in the literature, but the link between these and cultural rights, as well as the appropriateness of the climate change regulatory framework to handle this, has not been studied. The study looked at the negative effects of climate change on culture and evaluated whether South Africa's current climate change regulatory framework can help or impede the safeguarding of culture in the face of climate change's negative effects. The study also considered whether the climate change regulatory system in South Africa was enough for dealing with the negative effects of climate change on culture. To do so, the study used a desktop research method to assess and analyse current literature, legal framework, policies, and institutional activity on human rights, as well as the negative effects of climate change on the right to culture. It reviewed relevant legislation, national guidance documents and international and national studies about culture and aspects of climate change. Findings from this study show that South Africa has an elaborate legislative framework for addressing the detrimental effects of climate change but policy inconsistency, lack disjointment in application of policy at local level still affect the effective implementation of the legislative frameworks. The study unravelled the spatial application of law as one of the challenge hindering the protection of cultural rights. Moreover, court cases have demonstrated that the judiciary is an important avenue for solving matters that have to do with cultural rights as stated in the International Conventions on Climate Change. South Africa has a responsibility to integrate multiple knowledge systems, practices, and innovations in the design and implementation of international and national initiatives, programs, and policies in a way that respects and supports local communities and indigenous peoples' culture.Item Open Access Constitutional enforcement of Socio-economic rights: South African case study(2009) Choma, Hlako JacobThe entrenchment of socio-economic rights in the South African Constitution is a critique. It is submitted that a constitution that pretends to guarantee rights which cannot be judicially enforced should not be considered a serious legal document. In this paper, particular attention is paid to the far reaching judgment by the Constitutional Court in Mazibuko and others v The City of Johannesburg.1 The questions posed and answered relate to issues such as the enforceability of socio-economic rights entrenched in the constitutionsItem Open Access Constitutional protection of animal “rights” in South Africa and India: A legal comparison(2024-09-06) Mmbadi, Mbavhalelo Gerson; Jegede, A. O.; Lansink, A.The human-animal relationship has several inconsistencies. This is because of the contradictions on how human beings treat animals. In certain instances, human beings have shown love and affection towards animals, while in some instances, there has been a highest level of cruelty towards animals. Animal cruelty has long been a concern; however, society has occasionally accepted this behaviour as usual. This is because humans have power over animals and view them as property. A number of anti-cruelty Acts have been passed in South Africa in response to the current trend in the plight of animals. However, South Africa's anti-cruelty laws are insufficient, incoherent, and disjointed. Their anthropocentric as opposed to the ecocentric nature raises ethical and legal concern relating to the adequacy of legal protection of animals. Yet, ecocentric focus has emerged as a feature of legal protection in several legal systems; including India, which has used progressive interpretation of its Constitution for legal protection of animals. Using a doctrinal methodology, this study interrogates the various ethical and legal approaches that support the protection of animal rights. It then determines whether the legal protections for animals under South African law are adequate, and whether there are any lessons to be learned from India's constitutional protection of animals. It was found that Courts in South Africa prefer anthropocentric arguments to protect animals, while Courts in India prefer ecocentric viewpoints. Various provisions in the South African Constitution have been used to protect animals. There are, however, some constitutional provisions that can be used to protect animals, taking into account lessons in India, where Courts have readily extended constitutional provisions that protect humans to cover animals as well.Item Open Access The Constitutionality of Ukuhlola: A South African Cultural Practice(1995) Choma, Hlako JacobThe South African Human Rights Commission (SAHRC) as one of the chapter 9 state institutions supporting Constitutional democracy is mandated amongst others to promote respect for human rights and cultural practice. It also promotes the protection, development and attainment of human rights. It is within this mandate that the Human Rights Commission has observed the debates surrounding the prohibition of Ukuhlola (virginity testing) in the Children’s Bill. Ukuhlola has been historically regarded as a necessary social tool to bring pride amongst virgin girls, the parents and community as a whole. Ukuhlola is still practiced in some of the communities in South Africa, in particular Nguni communities. Ukuhlola culture originated from Zulu culture and is prevalent mostly in KwaZulu-Natal Province. The motive was to receive the full lobola (the eleventh cow). Ukuhlola practice faced out during the past century, but has made a come back in various areas of South Africa including Kwazulu-Natal in recent years. South Africa’s Moral Regeneration Movement3 has decided to urge the return of ukuhlola of teenage girls as a tool to fight against women abuse, teenage pregnancies and HIV& AIDSItem Open Access A critical inquiry into the the role of law as an instrument for the promotion of social cohesion in post-apartheid South Africa(2022-07-15) Maweto, Patrick P.; Iyi, J. M.; Raphulu, T. N.Law as a system of rules promulgated for social function is one of the most crucial elements in promoting social order. Law generally sets frameworks for regulation of various and almost all levels of interaction between members of a society, and inter-alia, legal creations such as juristic persons. The functions of law are elementary in answering what law can do to promote social cohesion. This study evaluates the role of law in promoting social cohesion in the post-apartheid context under the constitutional dispensation in South Africa. The study makes an inquiry into the functions of law as well as its objectives in relation to promoting and advancing social cohesion in a society split by racial divisions, nationality differences, tribal diversity, and numerous rights of various kinds as well as political differences. The study utilises an empirical methodology as the primary methodology of gathering information by way of direct participation of community members. This methodology was instrumental in exploring empirical questions and gaps of law and underlying legal concepts. The responses of participants inform the major findings of this study that there is a relationship between the legal order and the social order based on mannerism of adoption, implementation and social calibration of laws. These laws however must be directed at reflecting the common values of people so as to facilitate the attainment of social cohesion. The findings of the study generate insights on the instrumentality, limitations and role of law in promoting social cohesion in the post-apartheid context of South Africa.Item Open Access Cultural Symbols and Schools Act: A South African Case Study(2013) Choma, Hlako JacobSection 9 of the Republic of South Africa Constitution1 recognises that discrimination against people who are members of disfavoured groups may lead to patterns of group disadvantage and harm. It turns to be unfair, since it builds and entrenches inequality amongst different groups in the society. It is common cause that the school governing body is obliged in terms of the South African Schools Act,2 to adopt a code of conduct for learners. The Minister of Education may in terms of section 8 (3) of the Schools Act determine guidelines for the consideration of governing bodies in adopting a code of conduct for learners.Item Open Access The effect of land expropriation without compensation on mortgagees(2022-07-15) Munyai, Tebogo Innocentia; Dhliwayo, P.; Mkhabele, C, J. M.M.; Nwafor, A. O.Expropriating land without compensation is an old notion that has been in the South African legal system. The colonial history of South Africa must be considered to better understanding of the origin of this phenomenon. Through colonial and apartheid governments, most whites were able to gain exclusive use of the majority of valuable and rich land. This position was made possible by the enactment of unjust and discriminatory legislation. To redress these injustices, the democratic government enacted section 25 of the “Constitution of the Republic of South Africa, 1996” (the Constitution). Therefore, the history of land ownership in South Africa serves as a foundation for a critique of section 25 of the Constitution. Section 25 not only serves as a basis for the protection of property rights, but also to create equality by restoring all other rights, including property rights, to previously disadvantaged people. However, section 25 has been criticised for impeding any meaningful land reform, thus a call was made for an amendmend to the property clause that allows for expropriation without compensation. In this regard, the aim of the study is to examine the potential effect of land expropriation without compensation on mortgagees. To achieve this objective, an analysis of the laws and legal mechanisms regulating mortgage bonds is analysed, the constitutional perspective on the expropriation of land without compensation is assessed, and the effect of expropriation of land without compensation on mortgagees in South Africa is appraised. The study employs the doctrinal methodology. The study contends that expropriation of land without compensation has a direct or indirect effect on mortgagees in South Africa. It poses a substantial risk to the banking sector as a decrease in the value of land-based property, caused by an amendment to section 25, could impact negatively on mortgagees.Item Open Access The environmental rights entrenched in the constitutions: a critique(2015) Choma, HlakoAlthough environmental law is a relatively a new field of scholarship in South Africa, it is growing rapidly. The right to access to social security including environmental rights is found in the South African Bill of Rights, is being amplified by legislative and constitutional reforms, and developing case law in the courts. There is therefore a clear need to increase the understanding f the discipline through systematic research and teaching at various levels1. The notion of including an “environmental right” in a domestic constitution is not novel in Africa. Most African countries have incorporated a constitutional provision that ensures the right to a healthy environment. Most of the problems that exists with environmental rights under the international and regional systems are absent under the domestic South African system. The way in which environmental rights have been formulated in international instruments, section 24 of the South African Constitution has been framed as an individual right and not as a collective one. Environmental degration often affects groups of people and it could consequently argued that the right should protect groups and not just individuals2. 1Item Open Access The environmental rights entrenched in the constitutions: a critique(2008) Choma, Hlako JacobAlthough environmental law is a relatively a new field of scholarship in South Africa, it is growing rapidly. The right to access to social security including environmental rights is found in the South African Bill of Rights, is being amplified by legislative and constitutional reforms, and developing case law in the courts. There is therefore a clear need to increase the understanding f the discipline through systematic research and teaching at various levels. The notion of including an “environmental right” in a domestic constitution is not novel in Africa. Most African countries have incorporated a constitutional provision that ensures the right to a healthy environment. Most of the problems that exists with environmental rights under the international and regional systems are absent under the domestic South African system. The way in which environmental rights have been formulated in international instruments, section 24 of the South African Constitution has been framed as an individual right and not as a collective one. Environmental degration often affects groups of people and it could consequently argued that the right should protect groups and not just individuals..Item Open Access An evaluation of inmates and offender's rights to freedom and security of a person in the correctional system of South Africa(2022-07-15) Musekene, L. A.; Mothibi, K. A.The characterisation of inmates within a correctional service system as second-class citizens or marginalised citizens is not far-fetched. This is a reality when one considers the negative stigmatisation that is automatically conferred upon them by virtue of the guilty verdict found against them by a competent court of law. These “guilty offenders” are thus deprived of certain liberties and placed in incarceration with others who are in a similar predicament as them. However it is only typical that such an arrangement can lead to offenders being placed with other offenders who outmatch them in terms of their potential to resort to violence, thus making each incarcerated inmate a potential victim of violence. Therefore, it is only prudent that one endeavours to evaluate the efficacy of the protective measures designed to mitigate this threat to the safety and wellbeing of inmates and offenders. To this end this study analyses both international and national instruments promulgated as a palliative means to the aforementioned threat.Item Open Access The Expression of Cultural and Religious practice: A Constitutional Test(2010) Choma, Hlako JacobVarious conventions and national constitutions are differently worded and that the interpretation of national constitutions, in particular, reflects different approaches to the concepts of equality and non-discrimination. The different approach adopted in the different national jurisdictions arise not only from different textual provisions and from different historical circumstances, but also from different jurisprudential and philosophical understanding of equality. The jurisprudence of the courts make clear that the proper reach of the equality right must be determined by reference to the society’s history and the underlying values of the Constitution. It has been observed that a major constitutional object is the creation of an non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a concept of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact. The question is, how does the state, in limiting religious freedom, conform to the standards of an open and democratic society based on human dignity, equality and freedom? The hope is that the conclusion of this paper will then be able to be extended to more controversial cases, in particular, involving limits on the right to freedom of expression, culture and belief.Item Open Access Harmonizing customary law and human rights law in South Africa(2015-09-16) Ramatsekisa, Tsietsi Given; Mireku, OItem Open Access Head of Department et al and Hoerskool Ermelo et al Judgement: A critique(2011) Choma, Hlako JacobIt is common cause that the Government has committed itself to quality education since its inception, it is also noted that many children are still suffering the effects of apartheid. In the areas where black people lived, there were very few schools. Apartheid laws and policies ensured that black people were either denied education or received poor quality education. The previously white schools still have more resources and are able to provide a better quality education. Most of these schools are a long distance away from where black children live and are not accessible to black children Section 29 (1) (a) of the Constitution provides that everyone has the right to basic education, it includes disadvantage groups, such as women, persons living with disabilities, refugees and children, “hence transformation is encouraged.”Item Open Access The Human Rights Implications of the Application of the Death Penalty in Zimbabwe(2018-05-18) Moyo, Octavia Litshani; van der Walt, T.; Jegede, A. O.Capital punishment has been widely applied by countries since time immemorial. The concept, however, is highly controversial. That is, on the one hand, the anti-abolitionist states argue that it is an effective form of punishment, on the other side; the abolitionist states contend that it is an unjustifiable infringement of people’s fundamental right to life. There have been calls, both regionally and globally, for a moratorium on the death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights was promulgated as a move towards the abolition of the death penalty in all countries and states in the world. Article 1 (2) of the instrument states that, “Each state party shall take all necessary measures to abolish the death penalty within its jurisdiction”. At regional level, Article 4 of the African Charter on Human and Peoples’ Rights provides that all human beings are inviolable and entitled to the respect and integrity of their person. As such, no one may be deprived arbitrarily of this right. In addition, Article 1 of the Protocol to the African Charter provides that the death penalty shall not be applied by state parties in their territories or any person within their jurisdiction. Despite the current global and regional trends towards the abolition of the death penalty and its inherent controversy, Zimbabwe remains anti-abolitionist, and entrenched the death penalty in section 48 (2) of its 2013 Constitution. Adopting a doctrinal research methodology, the study critically analyses section 48 (2) (d) of Zimbabwe’s Constitution, and examines how it affects key fundamental rights as well as the way forward in the light of the international human rights standards on the death penalty.Item Open Access The Impact of Mining Rights on the local communities in Limpopo Province, South Africa: A comparative study(2009) Choma, Hlako JacobThe paper aims to give an account of the substance and support the development of community based organizations in balancing their interests against the interests of the mining industries. It further examines the issue of the protection of social and economic right in the context of the globalization of the activities of multinational mining and petroleum companies, as illustrated by different instances of increasing state withdrawal and with regard to specific African countries. In Africa, economic liberalization has been accompanied by a programmed redefining of the role of the state withdrawal from certain areas : planning, production and social reform, a reorientation of state intervention from certain other areas, redistribution, regulation and mediation ect, with a view of promoting a particular type of growth strategy based on promotion of private economic interests. This process has led to the delegitimation and weakening of states which were already characterized by fiscal crises, notably in countries under structural adjustment. While the process of reconceptualisation of the role of the state is not specific to Africa, its impact has been particularly significant with regard to the possibility of implementing developmental strategies designed to protect social and economic rights.Item Open Access The implications of judicial non-intervention in religious matters: a South African human rights law perspective A(2022-11-10) Mukwevho, Tshimangadzo Donald; Mailula, D. T.Since the decision by the court in Johan Daniel Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park, there has been a rise in advocacy on the need to ensure strict protection of human rights, specifically with reference to religious freedom, equality, and freedom of association. The core issue in this case was the accepted forms of intimate relationships allowed within the church in relation to the leadership roles the individuals play within the same church. Relationships involving same sex persons were not allowed. Furthermore, women were only allowed to undertake certain limited church based activities such as cleaning and the safety of the church, while men’s activities within the same church were not limited. The court in Ecclesia De Lange v the Presiding Bishop of the Methodist Church of Southern Africa attempted to resolve the problems emanating from the religious doctrine and the expected conduct of the members ascribed to a certain religion, by answering the question on how the dispute within the religious context should be dealt with. However, the court failed to address the implications of the developed jurisprudential perspective that courts should not interfere with religious doctrinal matters. The main purpose of this study is to critically assess the doctrine of entanglement with religious matters adopted by the courts, and its implications on the protection of the right to freedom of religion, culture, and equality in an open democratic South Africa. A doctrinal method of research will be employed. The doctrinal method of research allows access to information remotely through desktop research. A doctrinal approach allows for the analysis of materials to support the hypothesis. As this study requires analysis of the doctrine of entanglement and the manner in which the doctrine is interpreted and applied in South Africa, analysis of its historical background and development, case laws and opinions of other scholars will be essential, as it all forms part of the doctrinal perspective to research. The hypothesis states that the interpretation and the application of the doctrine of non-entanglement leave a gap in ensuring the effective protection of human rights by the judiciary.Item Open Access The law and its interpretation do play a role in the elimination of Xenophobia: a South African case study(2015) Choma, HlakoThe examination of certain legal aspects of xenophobia has shown that the law and its judicial interpretation do on the one hand server to safeguard against xenophobia and to eliminate it where it still prevails, on the other hand they can however serve to entrench it1. It is believed that in future, South African courts will continue to be proactive in the elimination of xenophobic tendencies wherever they may be encountered in the legal context and that law reform will eradicate laws which generate the impression that they are xenophobically motivated.