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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 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 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 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 Standard and non-standard workers: A critical analysis of the regulation of temporary employment services in South Africa(2022-07-15) Madala, Zwivhuya; Letuka, P. P.; Nwafor, A. O.; 344.0168This study focuses on South Africa’s regulation of temporary employment services. Over the years, the regulation of temporary employment services has proven problematic, particularly with regards to the provision of employment security and the realisation of decent work. Having noted the afore-mentioned predicament, the legislature amended section 198 of the Labour Relations Act1 to incorporate section 198A, for the purposes of providing additional protection to vulnerable employees in a temporary employment service. Thus, this study sought to determine whether the amendments to the 1995 LRA, particularly section 198A, provide adequate protection to the vulnerable employees employed by temporary employment services. Therefore, the researcher examined whether the “sole employment” interpretation of section 198A(3)(b) of the 2014 LRAA upheld by the Constitutional Court in the Assign Services(Pty) Ltd v National Union of Metalworkers of South Africa & Others2 case assisted in enhancing the legal protection of vulnerable employees employed in a temporary employment services. This discussion highlights the practical difficulties of integrating the Assign Services case judgement with current provisions of the 1995 LRA. It further indicates that the judgement provided more questions than the certainty it was sought for, which in turn, undermines the legislature’s intention of providing vulnerable workers with greater protection. This study adopted a doctrinal methodology. LLItem 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 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 role of school governing bodies in promoting the best interests of the child in schools(2021-11) Baloyi, A.; Letuka, P. P.; Lubaale, E. C.The “best interests of the child” principle is recognised in many international human right instruments. For instance, the United Nations Convention on the Rights of the Child1 (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC) both of which are leading instruments on the rights of children make provision for it. In terms of both the CRC and ACRWC, the “best interests of the child” are to be given primary consideration in all dealings with children.2 Both instruments have been signed and ratified by South Africa. The Constitution of the Republic of South Africa,1996 has incorporated the “best interests of the child” providing under its section 28(2) that the “child’s best interests are of paramount importance in every matter concerning the child”.3 Despite such universal recognition of the principle, a legislative framework that regulates the South African schooling system is silent on the “best interests of the child”, giving priority rather to the school’s best interests. School Governing Bodies (SGBs), which are the highest decision-making organs in school governance, are required by the South African Schools Act4 (SASA) to promote the best interests of their schools.5 Unfortunately what is in the best interest of the school may not always be in the “best interests of the child”. The SASA’s silence on the principle, therefore, raises constitutional challenges in the entire schooling system of South Africa. In the past years, SGBs adopted school policies which in their views, were in the best interest of their schools, only to be rejected later by the courts for their inconsistence with the Constitution. For instance in Pillay v KZN Minister of Education and Others6 the school refused to allow a learner to wear a nose-stud to express her religion. The Constitutional Court had to decide whether the learner was discriminated against by the school’s code of conduct. The Court held that the learner was discriminated against by the on religious and cultural grounds. It was held that schools are obliged to affirm and accommodate diversity in a reasonable manner. In Head of Department of Education, Free State Province v Welkom High School and Others7, two high schools in the Free State adopted policies which excluded pregnant learners. The Court had to determine the legality of these pregnancy policies. Consequently, it was found that they violated section 28(2) of the Constitution, which explicitly provides that “a child’s best interests are of paramount importance in every matter concerning the child”. The above examples illustrate the nature of constitutional challenges in the schooling system caused by the SGBs’ failure to accord due recognition to the “best interests of the child” due to the SASA’s silence on the principle. The study discussed the role of SGBs in promoting the “best interests of the child” in schools. In the absence of a clear legislative framework mandating SGBs to promote the “best interests of the child” in schools, the research will analyse the nature and scope of the “best interests of the child” principle as contained in international treaties, the Constitution, legislation and case law in order to assess whether an obligation rests on SGBs to promote the “best interests of the child” in schools.Item Open Access Prosecuting corruption under the international jurisdiction of the African Court of Justice and human and people's rights(2021-04-27) Malange, Nkhangweleni Lawrence; Van Der Walt, T.The adoption of effective reprobative measures against corruption have proven to have a positive impact on the public service sector and infrastructure of a state. With the alarming rate of corruption and the billions of dollars lost globally as a result of corrupt activities, it is not surprising that more and more legislation has been promulgated to combat corruption. The unequivocal stance against the prevalence of corruption is best denoted from the proposed amendments to the protocol establishing the African Court, as these proposed amendments explicitly provide for the crime of corruption. It is upon this premise that it is necessary to embark on an investigation and analysis of the possible impediments to the success prosecution of the crime of corruption by the court should the amendments be adopted. The study will therefore employ an in depth legal analysis of existing international instruments criminalising the crime and will draw lessons from varying jurisdictions that have adjudicated on the matter in order to give informed postulations that may aid the court in future.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 Public participation in the drafting of the 2013 Zimbabwean Constitution: The role and significance of the populace(2017-09-18) Musindo, Tariro; Choma, H. J.; Nwafor, A. O.The defining moment of Zimbabwean constitutional reform came in 2008 after the disputed and violence riddled elections of 2008 when the three main political parties entered into a transitional Government of National Unity and were tasked with the establishment of a new constitution which was ultimately adopted in 2013 following a protracted and turbulent process which began in 2009. Some segments of the civil society however argued that the concerned political parties had ‘captured the constitutional project and narrowed it to a short-term struggle motivated by the pursuit of party political interests at the expense of the will of the people and nation’s broad long-term interests’, and thereby subverted and/or negated the aspirations of the people. It is against this background that the study therefore assesses the participation, role and significance of the rural populace in the drafting of the 2013 Zimbabwean Constitution. The study traces the history of constitutional reform efforts in Zimbabwe, beginning with the colonial Lancaster House Constitution of 1979, to the protracted exercise of 2009 to 2013 which gave birth to the current Constitution. It focuses on the 2009-13 constitution making process as a case study. The study employs an interdisciplinary approach by adopting both doctrinal and empirical research approaches. The study employed the doctrinal research approach to provide for a doctrinal analysis of the relevant global, regional and domestic legislation and case law. The empirical research approach, through interviews, was used to collect qualitative data from the general members of the rural populace and key institutions such as political parties and human rights organisations from three selected rural districts, namely Bulilima, Makonde and Mutasa. The study indicated that while a significant number of the rural populace participated in the constitution making process, the legal environment which subsisted during the constitution making process did not allow for the unfettered flow of information and ideas, as a direct result of repressive legislation such as AIPPA, Criminal Law (Codification and Reform) Act, Interception of Communications Act and POSA, among others similar laws, and as well as the deeply polarised political environment owing to the nature of the relationship between the ZANU PF-led government and the opposition political parties. The study further showed that the process was heavily dominated by the political parties to the Global Political Agreement and all the political parties wanted to ensure the adoption of a constitution that best reflected their preferences and partisan views rather than the will of the masses, making the 2013 Constitution an elitist negotiated document, contrary to the provisions of Article VI of the GPA which provided for the right of Zimbabweans to make a constitution for themselves and by themselves.Item Open Access Realisation of the right of water of rural communities through affirmative action on water service delivery in South Africa(2017-05-18) Shikwambane, Pumzile; Jegede, A. O.; Choma, H. J.Historically, there were enormous differences and inequalities with regard to service delivery in South Africa. Traceable to the apartheid period, these inequalities included, inter alia, supply of inadequate and safe drinking water for black communities in particular those at rural areas. Yet, water is an essential necessity for human beings, regardless of race, disability and social status. As a legislative measure to redress the injustices of the apartheid regime, the right to have access to sufficient water is entrenched in Section 27(1) (b) of the South African Constitution of 1996. Also, several legal instruments such as the National Water Act of 1998 and the Water Service Act of 1997 were enacted to uphold the human right to water. The Constitution bestowed the responsibility of water supply and management to the national, provincial and the local government. Despite its inadequacy, the South African government is addressing the water needs of the most impoverished communities by guaranteeing each household a free minimum quantity of potable water of 25 litres per person per day or 6 kiloliters per household per month. Any person who needs more will come under privatisation model which key provisions on the existing law favors. About 38.4% of the population of South Africa who reside in rural communities are poor and mostly affected by inadequate water service delivery in that they cannot afford payment for water in excess of the minimum for which no fees is charged. As a concept, affirmative action is generally used in the context of work places to ensure that qualified marginalized groups have equal opportunities to get a job, but it is not yet investigated in the context of water service delivery. This study assessed laws governing water service delivery and explored how affirmative action can be used as an instrument to ensure the delivery of potable water to rural population in South Africa.Item Open Access Protection of the right of healthcare of people infected with ebola virus disease (EVD) : a human rights-based approach(2016) Nwafor, Gloria Chidimma; Vukor - Quarshie, G. N. K.; Letuka, P. P.Human rights are those inalienable rights of an individual by virtue of being a human being. They are guaranteed by various domestic and international instruments. This research argues that despite the existence of these instruments and wide acceptances of international human rights standards that seek to protect the right to healthcare, the people infected with Ebola Virus Disease (EVD) are victims of a wide range of constraints to their right to healthcare as a result of the failure by the governments of the respective nations where the impacts of the EVD are mostly felt to discharge their obligations under those instruments. The rights of the people infected with EVD are often violated because of their presumed or known EVD status, causing them to suffer both the burden of the disease and the social burden of discrimination and stigmatisation which could deter the infected persons from accessing available treatment. This would invariably contribute to the spread of the disease. The research further exposes the dilemma posed by the EVD to the healthcare system, where healthcare providers are caught between the rock of selfpreservation from a highly virulent disease and the hard place of discharging their Hippocratic Oath which prescribes ethical guidelines for the discharge of the duties of the medical profession. The present research, which is novel in the field of medico-legal research, seeks to proffer answers to this conundrum.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 Harmonizing customary law and human rights law in South Africa(2015-09-16) Ramatsekisa, Tsietsi Given; Mireku, OItem Open Access "Thou shalt not suffer a witch to live" : human rights implications of witch-hunt in South Africa and Zimbabwe(2015-07-16) Kugara, Stewart Lee; Vukor-Quarshie, G. N. K.; Lansink, AnnetteItem 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.