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Item Open Access The Right to Water and Sanitation: A South African Comparative Study(2015) Choma, Hlako Jacob; Ramphabana, PeterIt is common course that equitable access to water and sanitation must be accordingly and primarily regarded as criteria for the realization of other several human rights, such as the right to life, dignity, health, food, adequate standard of living and education. Access to safe drinking water and sanitation is essential to the enjoyment of safety and environment that is not hazardous to human health. The lack of water and sanitation does not only hinder access to other available rights, but also magnifies the vulnerability of women, girls and people with disabilities. Water and sanitation services are of outmost important to the health and wellbeing of all people. South Africa is operating under one of the most outstanding legislative and policy frameworks for basic services in the world, including the Constitutional right of access to sufficient water and right to basic sanitationItem 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 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 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 Small Claims Court and Accessible Quality Justice for All(2015) Choma, Hlako JacobThe paper acknowledges the meticulous work done by the researcher, Peter Ramphabana an LLB graduate from the University of Limpopo (Turfloop Campus) The Small Claims Courts are simplified with no strict pleadings requirements and no formal discovery process, and in most cases, particularly in South Africa no order as to costs. These courts are meant to be easier and less expensive way to resolve disputes than higher courts. In South Africa, these courts are authorized to hear civil matter only.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 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 Limitation of religious freedom to conform to the standards of an open and democracy society(2009) Choma, Hlako JacobOne has freedom of religion, not freedom from religion. This claim is common, but it rests on a misunderstanding of what real freedom of religion entails. The most important thing to remember is that freedom of religion, if it is going to apply to everyone, also requires freedom from religion. Why is that? One does not truly have the freedom to practice one’s religious belief if one is not also required to adhere to any of the religious beliefs or rules of other religious. Freedom from religion does not mean, as some mistakenly seen to claim, being free from seeing religion in society. No one has the right not to see churches, religious expression, and other examples of religious belief in our nation, and those who advocate freedom of religion do not claim otherwise. What freedom from religion does mean, however, is the freedom from rules and dogmas of other people’s religious beliefs so that people can be free to follow the demands of their own conscience, whether they take a religious form or not. Thus they have both freedom of religion and freedom from religion because they are two sides of the same coin.Item Open Access The Law and its interpretation do play a role in the elimination of Xenophobia: A South African case study(2008) Choma, Hlako JacobThe 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 motivatedItem Open Access A Review of developments and changes in the worlds' constitutions(2009) Choma, Hlako JacobThe constitution is a living document, that being the case, there is a need to increase the understanding of the constitution through systematic research and teaching at various levels. The paper aims to be a catalyst that inspires creative action to claim and advance certain new constitutional rights encapsulated in various world‟s constitutions. It seeks to raise awareness of new constitutional rights. Most world‟s constitutions have incorporated constitutional provisions that ensure the entrenched new fundamental human rights. The latest constitutions, including South African Constitution of 1996 are advanced and have included significant number of rights which were left out in the old constitutions. The courts are given the widest possible powers to develop and forge new remedies for protection of constitutional rights and the enforcement of constitutional duties.Item 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 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 Risk and opportunities connected to the credit legislation on movable property : a case study(Virtus Interpress, 2016) Choma, Hlako; Kgarabjang, TshegofatsoThe purpose of this paper is to determine to what extent should a lease of movable property fall within the ambits of the National Credit Act. The paper analyses the courts decisions regarding leases of movable properties, and further adds value to the existing scholarship. Courts are not ready to entertain extrinsic evidence in the cases where it contradicts the terms of an agreement. Parties should make sure that their contractual provisions are clear and unambiguous. Such provisions depict the notion that a lease of a movable property should fall within the ambits of the National Credit Act, hereinafter called NCA. And in such circumstances that qualifies it in terms of the Act ought to be met. In terms of section 8(4) of the NCA, a lease of movable property should by no means exclude the provision that ownership will pass to the lessee upon payment of the final rental instalment. Alternatively upon meeting certain conditions as determined by parties. One should therefore be able to differentiate leases in terms of the NCA and leases as defined by common law. Thus, one cannot try to qualify common law leases within the context of section 8(4) of the NCA where the original intention was an ordinary common law lease agreement. The Court in the case of ABSA Technology v Michael`s Bid House concluded that the NCA was not applicable to leases of movable property in certain circumstances. It is the findings of this paper that courts, recognize lease of movable property.Item Open Access Trade liberalization and climate change(2015) Choma, HlakoInternational trade has major influence for climate change through the shift and production structure. The environmental protection agency and the World Trade Organisation should vigorously debate the interaction between free trade regime and global warming mitigation regime. The paper attempts to deliberate the measures which would contribute to facilitate the global climate negotiations by bringing mutual benefit for both developing countries and developed countries, from the point of view of international economics. The paper focuses on foreign aid, and clarifies why international aid for developing countries is needed for sustainable mutual economic growth through more liberalized world trade, which is compatible with the climate change mitigation.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 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.