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Item Embargo The Right of Future Generation to a Safe Climate in the SADC Region(2026-05-19) Maweto, Patrick P.; Jegede, A. O.; Kandala, L. J. J.The Intergovernmental Panel on Climate Change (IPCC) identifies Southern Africa, which encompasses all Southern African Development Community (SADC) member states, as a climate change hotspot facing irreversible environmental and climate-related constraints. Concurrently, resolutions of the United Nations Human Rights Council (UNHRC) and key instruments, such as the Maastricht Principles on the Human Rights of Future Generations, underscore the urgency to safeguard future generations from the adverse impacts of climate change. Future generations are increasingly being recognised within the global normative frameworks and jurisprudence of the United Nations human rights treaty system, as well as in national constitutions and legal decisions. However, at the sub-regional level within SADC, significant uncertainty persists regarding the existence, legal content, and protection of the right of future generations to a safe climate. Yet, normative standard-setting and legal interventions are essential drivers of protection. This study employs a doctrinal methodology and uses Zimbabwe, South Africa, Madagascar, the Democratic Republic of Congo, and Tanzania as case studies to interrogate the adequacy of normative standards within the SADC context. The findings reveal three key issues: firstly, there is insufficient legal recognition and protection of the rights of future generations at both the SADC and national levels. Secondly, SADC states continue to rely on environmentally unsustainable practices due to the inconsistent application and implementation of regional frameworks, compounded by their normative inadequacies, which exacerbate climate change and overlook climate mitigation and adaptation efforts. Lastly, Climate change poses a serious threat to a range of human rights relevant to future generations, including the rights to food, health, water, life, and a safe and healthy environment. The study concludes that a human rights-based theoretical framework is powerful for advancing legal pathways to protect future generations. These pathways include adopting an SADC Protocol for future generations, reinstating the SADC Tribunal's protective mandate for human rights, appointing a special rapporteur on the rights of future generations, and ensuring robust monitoring and reporting mechanisms for state responsibilities towards future generations. Also, the implementation of states’ obligations to respect, protect, and fulfil human rights can be effectively employed to address the climate crisis in the SADC region.Item Embargo The inconsistent application of the status of the foetus under South African law: Comparative insights from the UK, Kenya and Colorado(2026-05-19) Mudau, Junior; Sikhitha, T. M.; Lavhengwa, L.In South African law, legal personality is conferred only upon live birth, in line with the common law “born alive” rule. Under this rule, a foetus is not considered a legal subject and therefore cannot hold rights or duties in law. However, this position is challenged by statutory provisions that offer recognition to the unborn. Notably, the Choice on Termination of Pregnancy Act 92 of 1996 (CTPA), the Births and Deaths Registration Act 51 of 1992 (BDRA), Intestate Succession Act 81 of 1987 (ISA) and the Wills Act 7 of 1953 contain provisions that, while not granting complete legal subjectivity to the foetus, imply a legal interest and, in other circumstances, legally recognise its existence. CTPA permits abortion on request during the first trimester but imposes restrictions in the second and third trimesters. These imposed restrictions suggest a graduated state interest in the developing foetus. Section 18 of the BDRA mandates the issuance of burial orders for stillbirths occurring after 26 weeks of gestation, which is a recognition of the foetus’s posthumous dignity. Furthermore, section 2D(1)(c) of the Wills Act and Section 1(c)(ii) of the Intestate Succession Act allow a foetus to be recognised as a legal subject for purposes of inheritance. Collectively, these provisions introduce a contradiction into South Africa’s legal framework, where the foetus is denied legal subjectivity in terms of common law, yet it is conditionally acknowledged in statutory law under certain circumstances. This study critically examines these legal inconsistencies using legal paradigms, a dominant framework or models for understanding, interpreting, and applying law, which include legal constructivism, legal positivism, and critical legal theory. This will provide insight into whether South African law is evolving toward a more practical and legally sound approach to the unborn. It also explores other fields of study, which are based on scientific findings on the origins of human life. The failure of the South African legal framework to establish a consistent standard for determining the onset of legal subjectivity leads to social injustice. These social injustices result from the contradiction between statutory law and common law, causing unequal treatment of people in society. The research will evaluate the impact of these inconsistencies on constitutional values such as social justice, dignity and equality, especially for woman and grieving parents. The study will look at international treaties and conventions to understand how international instruments determine when a person is considered to have legal status in international law. It will also compare South Africa’s laws with those of Colorado (USA), England (UK), and Kenya. While all these jurisdictions have their own standards for determining legal status, their laws differ in their interaction with the determination of the legal status of a foetus. The study will examine whether South Africa’s partial recognition of the foetus is consistent and provide a solution to the impact of the inconsistent application of law, which will advance people’s rights and the integrity of South African law.Item Embargo The Constitutionality of Permission to Occupy as Opposed to the Deed of Grant and Title Deed under South African Law(2025-09-05) Mulaudzi, F. G.; Oluyeji, OlufemiSouth Africa attained its democratic rule 30 years ago. However, solutions to some fundamental issues, such as the constitutionality of permission to occupy (PTO) vis a vis the deed of grant regarding land tenure, remain elusive. Although PTO is widely utilised as evidence of title to land ownership, a landholder with a PTO is insecure. This is so because PTO does not grant ownership to the holder, but it is commonly accepted that the personal rights granted are similar to having a real right. Moreover, PTOs are not registrable at the Deeds Office, as opposed to a deed of grant. It is further argued that, although the title deed is recognised by the Constitution, its use and availability in servicing the marginalised communities in urban and rural communities is worrisome. Title deeds are permanent and give the owners the right to occupy and enjoy the use of the land or property. However, PTO is temporary and can be repealed at the whim of authorities. Despite considerable efforts to eliminate overreliance on PTOs, their continuous use in tribal communities signifies the need for it to be considered a real right in law and practice. Ensuring that PTOs confer a real right is essential in solving the challenges of poverty and inequality in rural and urban communities. In particular, such a policy thrust would redress the discriminatory legacy of the apartheid system. This study's findings will inform a policy change and law reform. It will introduce a new perspective in law by influencing a new thinking amongst the legal fraternity. The law professionals will be intriqued to in proffer appropriate legal instruments critical to empowering marginalised communities.Item Embargo Leveraging and enhancing existing legal frameworks in the African Regional system for the prevention of ecocide and environmental dam(2025-09-05) Mutasa, Lawrence Tatenda; Kandala, L. J. J.; Jegede, A. O.The African Regional system has been a subject of ongoing debates and discussions on how to protect the environment and combat ecocide effectively. In this regard, various legal frameworks have been put in place to address these issues, particularly the Bamako Convention on The Ban Of Import To Africa And The Control Of Transboundary Movement And Management Of Hazardous Wastes Within Africa. However, there is still room for improvement in leveraging and enhancing these existing legal frameworks for more efficient ecocide prevention and environmental protection. The Protocol On The Amendments To The Protocol On The Statute Of The African Court Of Justice And Human Rights (Malabo Protocol) provides a more effective way to criminalise Ecocide. The main question addressed in this research is how the African Regional system can prevent ecocide and ensure environmental protection through Article 28L of the Malabo Protocol. If so, how should this be done, and if not, how can existing legal frameworks be leveraged and enhanced? KeywoItem Embargo The Constitutionality of Permission to Occupy as Opposed to the Deed of Grant and Title Deed undr South African Law(2025-09-05) Mulaudzi, F. G.; Oluyeju, OlufemiSouth Africa attained its democratic rule 30 years ago. However, solutions to some fundamental issues, such as the constitutionality of permission to occupy (PTO) vis a vis the deed of grant regarding land tenure, remain elusive. Although PTO is widely utilised as evidence of title to land ownership, a landholder with a PTO is insecure. This is so because PTO does not grant ownership to the holder, but it is commonly accepted that the personal rights granted are similar to having a real right. Moreover, PTOs are not registrable at the Deeds Office, as opposed to a deed of grant. It is further argued that, although the title deed is recognised by the Constitution, its use and availability in servicing the marginalised communities in urban and rural communities is worrisome. Title deeds are permanent and give the owners the right to occupy and enjoy the use of the land or property. However, PTO is temporary and can be repealed at the whim of authorities. Despite considerable efforts to eliminate overreliance on PTOs, their continuous use in tribal communities signifies the need for it to be considered a real right in law and practice. Ensuring that PTOs confer a real right is essential in solving the challenges of poverty and inequality in rural and urban communities. In particular, such a policy thrust would redress the discriminatory legacy of the apartheid system. This study's findings will inform a policy change and law reform. It will introduce a new perspective in law by influencing a new thinking amongst the legal fraternity. The law professionals will be intriqued to in proffer appropriate legal instruments critical to empowering marginalised communities. Keywords:Item Embargo Gender equality under customary law: an analytical study on the developments of women's rights under customary law(2025-05-16) Mabuza, Simon Promise; Mopai, Z. B. M.; Mokoena, U.C. A.African traditional customs have historically been criticized for perpetuating practices that undermine women's rights. Rights to equality, human dignity, and bodily and psychological integrity have been suppressed under many Indigenous customs. Historically, customary law systems were structured in ways that disadvantaged women, particularly in areas such as marriage, inheritance, and traditional authority. Patriarchal norms entrenched in customary law before the democratic era afforded men significant privileges over women, especially in leadership roles within society and the family. Consequently, many customary law norms remain at odds with human rights principles that promote gender equality. Although South Africa has made significant strides in reforming customary law to align with constitutional principles and ensure gender equality, women living in traditional communities still face systemic barriers to justice. Many of these challenges stem from limited access to legal recourse and continued reliance on traditional leaders to interpret and enforce customary norms. While constitutional rights theoretically apply to all citizens, women in rural areas often experience these rights as inaccessible or ineffective due to entrenched traditional practices. This study examines the progress made by South Africa's judiciary and government in addressing the historical injustices of customary law. It evaluates the effectiveness of constitutional protections and judicial interventions in safeguarding women’s rights under customary systems. Finally, this paper argues for the need to strengthen oversight of traditional communities and integrate government institutions into areas governed by customary law. These measures aim to enhance awareness and enforcement of women's rights, ensuring their full realisation in practice.Item Open Access Developing guidelines for the protection of indigeneous knowledge under agreement establishing the African Continental Free Trade Area(2025-05-16) Mukwevho, Tshimangadzo Donald; Ndlovu, L.; Oriakhogba, D. O.This study examines the efficacy of protecting indigenous knowledge within the context of the African Continental Free Trade Area (AfCFTA) Agreement. It examines the efforts aimed at establishing a robust legal and policy framework within the AfCFTA to foster African economic development. Although the Protocol to the Agreement Establishing the African Continental Free Trade Area on Intellectual Property Rights (IP Protocol) has been adopted, there is yet to be an annex on indigenous knowledge, traditional cultural expressions, and genetic resources. Therefore, this study proposes guidelines and a structured framework to guide the development of this annex. As a desktop (doctrinal) research, this study examines international, regional, and national legal frameworks, best practices, case law, and academic literature on the protection of indigenous knowledge. Grounded in a combined biopiracy, IP, and, free, prior, and informed consent (FPIC) conceptual framework, this study develops an "Integrated Indigenous Knowledge Protection Theory," which justifies the adaptation of the conventional IP regimes and developing a sui generis regime for indigenous knowledge protection. This approach encapsulates the incorporation of the IP regime, indigenous peoples’ rights, customary rules, and administrative and institutional framework for protecting indigenous knowledge. To achieve the study objectives, the thesis explores the propriety of using trade agreements, particularly the AfCFTA Agreement, to protect indigenous knowledge. It then examines the approaches adopted in existing international and national legal, policy and practices on the protection of indigenous knowledge. From this, the study proposes useful guidelines and effective structure for the Annex to the IP Protocol. Ultimately, this study advances the argument that a comprehensive framework that balances the economic exploitation of indigenous knowledge and the associated resources, with the rights indigenous people/communities have over these resources will effectively guide policy and lawmakers towards developing a framework that will ensure the protection of indigenous knowledge for the actualisation of the objectives of the AfCFTA Agreement.Item Open Access A Critical Analysis of the Enforcement of Human Rights in Addressing Workplace Discrimination Against the LGBTQIA+ Community in South Africa(2024-09-06) Mashamba, Takalani; Mokoena, U. C. A.; Ndou, M.Section 9(3) of the Constitution of the Republic of South Africa indicates that everyone is equal before the law and no one should be discriminated against on the grounds of gender, sex, race, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, disability, age, religion, conscience, belief, culture, or language. Members of the LGBTQIA+ community are discriminated against in their homes, within their communities, and in their workplaces. This happens despite South Africa having progressive laws that support the LGBTQIA+ community compared to other countries around the world. In order to answer the research questions, this study adopted the doctrinal research methodology for its effectiveness in critiquing, assessing, and developing law. The aim of the study was to examine the extent to which the LGBTQIA+ community is protected against discrimination based on their sexual orientation at their workplaces. The objectives of the study were to explore discrimination within the work environment, workplace policies, and all other legislation protecting the LGBTQIA+ community; to explore the nature and determine forms of discrimination and other human rights violations against the LGBTQIA+ community in the workplace; and to analyse LGBTQIA+ anti-discrimination provisions and court judgements from other jurisdictions. The South African constitution and labour-related acts are there to ensure that the LBGTQIA+ community is protected from workplace discrimination. The Employment Equity Act, Promotion of Equality and Prevention of Unfair Discrimination Act, Labour Relations Act, and the Basic Conditions of Employment Act are available to prevent discrimination. However, LGBTQIA+ people still experience discrimination in the workplace. When employees encounter discrimination because of their sexual orientation, they must first talk to their supervisor, and when no assistance has been provided, the employee must make use of the courts. The outreach awareness campaign for LGBTQIA+ rights in the workplace is also recommended. Equal pay for equal work done should apply to the LGBTQIA+ community in the workplace. Name-calling and harassment should be treated with severe punishment among co-workers who inflict discrimination against the LGBTQIA+ community.Item Open Access Realising the right to healthcare services in South Africa(2024-09-06) Monyai, Wanga Ezekiel; Kandala, L. J. J.; Choma, H. J.This study examines the ongoing problems faced in an attempt to enforce the provision of the entitlement to hospital facilities. It outlines the legal and constitutional frameworks that makes provision for the entitlement for having to access healthcare services for all people in the Republic. The need for such provision is a central part of the national vision for healthcare transformation. Therefore, our constitution provides that: “everyone has the right to have access to health care service.” In this regard it is important to note that “ This constitution is the supreme law of the Republic ;law or conduct that is in consistent with it is invalid and obligations imposed by it must be fulfilled”. The study draws on evidence from a range of sources, including published literature, policy, and existing healthcare reforms in South Africa, evaluates their efficiency and the current state of healthcare in the country, and discusses the socio-economic and political issues, including poverty, inequity and inadequate public healthcare infrastructure. Particularly, this study accesses the legal initiatives in South Africa, such as the statutory Health Insurance (NHI), and their potential to improve enforceability of the said right. The conclusions drawn from this paper suggests that South Africa faces ongoing problems in achieving the objectives of providing for the right to healthcare, including a shortage of healthcare providers, low levels of public financing for health, and inadequate supplies. We are further burdened by the country's limited human resources and infrastructure, inadequate health systems governance, and weak public-private partnerships have all contributed to the slow progress in achieving universal healthcare coverage in the country. The study concludes by proposing specific recommendations to safeguard the provision of the said right. These strategies include increasing public investment in health, strengthening public-private partnerships, and improving the management of the health system. It also highlights the importance of developing innovative strategies that can engage stakeholders in understanding and addressing these ongoing problems. The evidence presented throughout this study suggests that substantial effort will be required to overcome the different challenges and ensure universal healthcare coverage in the country.Item 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 Right to Sustainable Development for Women in South Africa: A Critical Analysis of Article 19 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa(2024-09-06) Mulaudzi, Ndzumbululo; Mokoena, U. C. A.The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (hereinafter referred to as the Maputo Protocol) highlights the importance of sustainable development for women in Article 19. This research delves into an analysis of this article. Section 9 of the Constitution ensures that everyone is treated equally under the law. This provision serves as a basis for supporters of women's rights to advocate for progress, in South Africa by focusing on initiatives that empower women. Various laws have been put in place to uphold this entitlement. The question remains; are they adequate, in addressing the challenges faced by women concerning equality and sustainable development? The focus of this study is to examine the existing framework aimed at promoting women’s rights to development. The doctrinal research approach is utilised in this study. The current legal framework concerning the right to sustainable development may not be comprehensive enough to tackle the obstacles encountered by women. The objective is to evaluate the legal framework surrounding this clause and provide recommendations based on research findings.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.