Theses and Dissertations
http://hdl.handle.net/11602/2162
2024-03-28T15:36:36ZClimate change regulatory framework and the protection of cultural rights in South Africa
http://hdl.handle.net/11602/2406
Climate change regulatory framework and the protection of cultural rights in South Africa
Maiwashe, Dzivhuluwani Rueben
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.
LLM; Department of Public Law
2022-11-10T00:00:00ZThe implications of judicial non-intervention in religious matters: a South African human rights law perspective A
http://hdl.handle.net/11602/2391
The implications of judicial non-intervention in religious matters: a South African human rights law perspective A
Mukwevho, Tshimangadzo Donald
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.
LLM (Human Rights); Department of Public Law
2022-11-10T00:00:00ZThe effect of land expropriation without compensation on mortgagees
http://hdl.handle.net/11602/2307
The effect of land expropriation without compensation on mortgagees
Munyai, Tebogo Innocentia
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.
LLM; Department of Public Law
2022-07-15T00:00:00ZA critical inquiry into the the role of law as an instrument for the promotion of social cohesion in post-apartheid South Africa
http://hdl.handle.net/11602/2306
A critical inquiry into the the role of law as an instrument for the promotion of social cohesion in post-apartheid South Africa
Maweto, Patrick P.
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.
LLM; Department of Public Law
2022-07-15T00:00:00Z