Theses and Dissertations
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Item Embargo Balancing indigeneous community rights and intellectual property rights in the protection of genetic resources and associated traditional knowledge in South Africa(2023-10-05) Mugabe, James Chapangara; Ndlovu, L.; Oriakhogba, D.The growing realisation of the importance of traditional knowledge in the commercial exploitation of genetic resources has fuelled intense debate over whether and how such traditional knowledge should be protected. This debate is also driven by the need to protect genetic resources and associated traditional knowledge from misappropriation and biopiracy, whilst also ensuring that biodiversity rich countries and their indigenous peoples receive a fair and equitable share of the benefits derived from their utilisation. This study examined the protection of genetic resources and traditional knowledge in South Africa and how it is balanced with the competing rights of holders and users of genetic resources and traditional knowledge. The study examined the current debates regarding the protectability of traditional knowledge within the IP system. It then looked at the theoretical and legal foundations from the South African Constitution and international law. Thereafter, the study provided an in-depth and critical comparative analysis of the measures taken in South Africa, Brazil, and India, to determine whether there are any lessons and opportunities for strengthening the policies and legislation to protect genetic resources and traditional knowledge in South Africa. The study found that, even though there is no single binding international instrument for the protection of genetic resources and associated traditional knowledge within the international IP regime, The Constitution of the Republic of South Africa, 1996 (the Constitution) and several international legal instruments provide some basis for their domestic protection. The study found similarities between the approaches taken by India and Brazil to the South African approach. Lastly, the study concluded that the protection of genetic resources and associated traditional knowledge should be implemented in such a way that it serves the various goals, which include the protection of the rights of IPLCs, and fair, equitable and sustainable socio-economic development, among others. Recommendations for further study and for policy development were also made.Item Embargo A critical analysis of the role of the Judiciary in the development of Customary Law in South Africa(2023-10-05) Siphalala, Vuledzani; Choma, H. J.; Mopai, Z. B. M.Customary law refers to both, written and unwritten laws, traditionally observed amongst the indigenous African people of South Africa. These laws ought to be in line with the constitution and the law of general application. Section 39 (2) of the Constitution (that is, the Constitution of the Republic of South Africa Act 108 of 1996) states that “when interpreting any legislation and when developing the Common law or Customary law, courts, tribunal or forum must promote the spirit, purport and object of the Bill of Rights.” In other words, the judiciary is duty-bound to develop and promote customary law by interpreting it in conjunction with the Constitution and the Bill of Rights. In developing customary law, however, an issue that remains unresolved is whether, in interpreting the law, the courts are positively developing customary law. Against this backdrop, this research seeks to assess different principles of customary law by critically analysing the manner in which courts are engaging with them, in particular, the implication that their approach has on the status of customary law in South Africa’ legal system.Item Embargo Regulation of Religious Groups in South Africa and International Human Rights Standards(2023-10-05) Mutavhatsindi, Fulufhelo; Lubaale, E. C.; Mokoena, U.C. A.In recent times, South Africa has had to contend with multiple challenges pertaining to religion and the manner in which it is being manifested. Cases abound of people allegedly engaging in acts such as gulping petrol, being placed in deep freezers and pesticides sprays as part and parcel of religion and religious practices. There are reports suggesting that some are involved in crimes such as money laundering, extortion, fraud, sexual acts and other illegal acts claiming that these acts are religious acts. This state of affairs has awakened reactions from various sections in South Africa’s Society more importantly, the commission which deals with religious matters - the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission) which has responded to these realities by making a call for regulation of religious activities. The CRL Commission hopes that regulating religious groups will help address and bring to an end some of these practices, which according to it, are unacceptable. The CRL Commission contends, among others, that people should face reality and stop engaging in such practices and belief systems. However, some religious organizations such as Freedom of Religion South Africa (FOR SA) and others have been rejecting such proposals by the CRL Commission claiming CRL Commission is not the right organ to regulate religious practices and such is interfering with freedom of religion as guaranteed by the Constitution. Those religious organizations even question the CRL Commission’s mandate and powers. Although CRL Commission claims to regulate religious practices so that it may end controversial practices, some people remain committed to their beliefs and religious practices, going as far as to demand that the government, including chapter nine institutions such as the CRL Commission should steer clear of interfering in their religious choices. Amidst all this, it is not in dispute that some of the religious practices in some churches have an element of criminality. All these surrounding circumstances make the issue of religious practices and regulation a complex one. This research assesses the practicality and constitutionality of regulating religious beliefs and practices by measuring the CRL Commission’s proposals against both international human rights standards and South Africa’s national laws. This research evaluates the constitutional mandate and objectives of the CRL Commission and also addresses the question of whether there are some legal frameworks in place that can effectively address the concerns raised by the CRL Commission such as criminality and other alleged unlawful acts. This study went as far as assessing how other countries addressed any related act which might have occurred in their countries. In addressing these issues, the methodology used is doctrinal.Item Embargo Satellite litigations and the right to fair trial in criminal proceedings(2023-10-05) Masindi, Ndivhudzannyi Emmanuel; Oluyeju, OlufemiSouth Africa has a constitution and statutory provisions that protect individuals against unreasonable delays and unreasonable adjournments in court. The problem lies when an accused person institutes satellite litigations to delay and avoid justice. Satellite litigation is a tactic used by accused persons to delay and evade justice, violating their rights to a fair trial. It further suggests measures to curb satellite litigation. The study begins with the background to the research topic. It explores what the law says about delays in court. It further analyses the impact of delays on the justice system. In conclusion, it recommends measures to curb satellite litigation. The research is both library and desktop based, utilising library materials like textbooks, legislation, reports, regulations, law journals, charters, policies, articles, case laws, the Constitution of the Republic of South Africa, and international and national legal resources. This study therefore aims to find a feasible solution to the problem. It also examines current laws and policies that prevent unreasonable court delays. Thus, it investigates the common reasons for satellite litigationItem Open Access A critical analysis of a review pendente lite application against a lower court`s proceedings and its influence on the right to a fair trial: A South African perspective.(2023-05-19) Mudzanani, Ndinannyi; Van Der Walt, T.The Constitution of the Republic of South Africa is built upon the values of protection and promotion of human dignity, equality, and freedom. It is the state that is bound to promote, fulfil, and protect human rights as enshrined in the Bill of Rights. The very same Constitution makes a provision for the right to a fair trial to every accused person allegedly presumed to have committed offence[s] and subjected to a criminal trial. Whenever the accused is not satisfied with the pending criminal proceedings in a lower court and has a reasonable ground[s] or apprehension that, such proceedings are not in accordance with justice, this study contends that, there is an avenue provided by the South African law, to review and set aside the so-called poisoned proceedings. Yet, it remains undisputed that, the Criminal Procedure Act 51 of 1977 is considered a cornerstone statute of the criminal jurisprudence in South Africa. However, there is no provision in the Criminal Procedure Act that regulates on how review pendente lite in criminal cases should be conducted. This exposes the indigent accused persons to a very expensive and confusing civil courts review in terms of section 22 of the Superior Courts Act read with rule 53 of the Uniform Rules of the Court. This study will argue that, such an exclusion prejudices the right to a fair trial which amongst others, includes the right for a review. This study has employed the doctrinal method in order to achieve its purpose.Item Open Access Pre-and post-constitutional deprivation of land in South Africa: A human rights perspective(2023-05-19) Maphalaphathwa, Livhuwani Dollance; Raphulu, T. N.The application of apartheid laws and practices in South Africa led to extreme inequalities relating to land ownership and use. The racially discriminating laws legitimised the dispossession of land and placed prohibitions on land ownership for the majority of the population, in particular blacks, coloureds and Indians. Though these laws were finally abolished, a new democratic South Africa faces numerous challenges such as the unequal distribution of land in the country. The first instances of deprivations and dispossessions of land in South Africa can be traced back to the colonial era. Although evidence suggest that deprivations and dispossessions occurred before 1913, there is an anomaly in the current Constitution in Section 25(7) as it only allows equitable redress to those deprived of land after 19 June 1913. The Constitution and subsequent legislation ignore the deprivations and dispossessions that occurred before 1913 and the people affected by such pre-1913 deprivations are left without any equitable redress. Using a doctrinal methodology, this study investigated the pre and post constitutional deprivation of property rights in South Africa from a human rights perspective. The study found that laws and practices that legitimised land deprivations and dispossessions are associated with colonialism as they pre-date 1913. The study further found that Section 25(7) of the South African Constitution does not provide any equitable redress to those deprived or disposed of land before 1913. The protection of those people can, however, be in terms of legislation enacted under the provisions of Section 25(8), but the government has not enacted such legislation. International law now recognises the right to property, and any equitable redress should be in line with international law principles.Item Open Access A critical analysis of the concept of the best interest of the child in the South African Criminal Justice System(2023-05-19) Tshisikule, Mashudu Isaac; Van Der Walt, T.South Africa continues to witness high crime rates, and children are increasingly involved in crime-related issues as witnesses, victims, or offenders. Therefore, more children are exposed to the criminal justice system processes. In light of South Africa’s Constitutional supremacy, the Constitution serves as the basic norm for all laws of general application and ensures a coherent and value-based legal system. This study explored how, children and their best interests are catered for in the criminal justice processes, despite their vulnerability. The pursuit to study the best interests of children emanated from discourses that classify children’s best interests under family law, and little attention is directed towards criminal justice processes that affect children, and the meagre extent to which the best interest principle and narratives are recognised, considered, and adapted to cater for children involved in criminal justice processes. Consequently, South Africa also adopted the Child Justice Act of 2008, which is heralded as a key step towards integrating and addressing all fundamental criminal justice processes related to children and significantly considering their best interests. Therefore, the study sought to examine whether children’s best interests are fully captured at the legislative level in the criminal justice system. Furthermore, the study explored how the criminal justice system interprets the best interests of children developed by the judiciary in line with global trends and practices, considering that South Africa is part of the global community, and its Constitution is regarded as a framework that champions key values, rights and principles required in a functional society. The study also analysed the processes and developments implemented by the South African government to protect and promote the best interests of children in criminal justice processes.Item Open Access The flattening of the COVID-19 pandemic curve and the legal paradox of socio-economic rights in South Africa(2023-05-19) Litshani, Pfariso Victoria; Jegede, A. O.Major public health and socio-economic issues have been brought on by COVID-19, an infectious respiratory virus that causes symptoms similar to those of pneumonia. This study seeks to interrogate the implications of the legal approaches taken to address COVID-19 pandemic issues on the socio-economic rights in South Africa. To better understand the laws governing COVID-19 regulations and socio-economic rights and to provide an argument for their more effective application, the study used a doctrinal legal research methodology. Evidence that has been examined and interpreted in regard to socio-economic rights demonstrates that nations are obligated to act in a particular way in the event of pandemics under international human rights law. However, tension may arise as the performance of such obligations may clash with key individual rights of populations. South Africa is one of the most unequal nations in the world, yet its COVID-19 regulations were implemented with minimum regard for certain socio-economic rights of the population. Based on this finding, it is recommended that states, including South Africa need to respect, protect, and fulfil the enjoyment of basic human rights during pandemic times.Item Open Access The right to sexual orientation and LGBTIQ+ rights: a case study of Zimbabwe and Nigeria(2023-05-19) Magweva, Vimbai Mitchel; Mailula, D. T.; Lansink, A.The Constitution of Zimbabwe and the federal Constitution of Nigeria do not protect the right to sexual orientation and LGBTIQ+ rights. In fact, same-sex relationships between consenting adults have been criminalised in both states. This study analyses discrimination on the ground of sexual orientation and examines which human rights are infringed in these states by the sodomy laws. Although sexual orientation is not specifically enumerated as a prohibited grounds of discrimination in the Zimbabwean and Nigerian Constitutions, this study argues that international human rights law is evolving to include sexual orientation as a prohibited ground of discrimination. To support this conclusion, relevant findings of international human rights treaty bodies, such as the Human Rights Committee, and regional instruments including the African Charter are examined. Further support is found in landmark judgments of national courts in other jurisdictions, such as Botswana, and other regional human rights courts, which, although not authoritative in Africa, have persuasive value. This research explores how, and, to what extent, these international human rights law obligations are binding on Zimbabwe and Nigeria. As a consequence of the criminalisation of sodomy laws in Zimbabwe and Nigeria, LGBTIQ+ people face stigmatisation, arrest, imprisonment and violence, and their rights to privacy, human dignity, health, and equality are infringed despite that these rights are guaranteed to everyone. Moreover, homosexual couples do not enjoy the same rights as heterosexual couples regarding marriage, choosing a life partner, adopting children, and forming a family. In answering the research questions, the doctrinal method of legal research is utilised. The study concludes with making recommendations to strengthen the constitutional and legal framework to protect the rights of LGBTIQ+ persons in the two states.Item Open Access A critical analysis of freedom of the press under the state of national disaster relating to the corona virus pandemic in South Africa(2022-11-10) Nemusunda, Pfunzo; Mailula, D.The protection of the right to freedom of the press is vitally important in a democratic state. The purpose of this study is to critically analyse the right to freedom of the press in South Africa under the national state of disaster relating to the corona virus pandemic. The aim is to establish how the right to freedom of the press in South Africa can be promoted and protected under the national state of disaster relating to the corona virus pandemic. This study focuses on determining the approaches that maybe utilised to improve the promotion and protection of the right to freedom of the press in South Africa under the national state of disaster relating to the corona virus pandemic. The method that is going to be utilised is the doctrinal research method as it is the appropriate method to answer the research question. The right to free press is embraced by international, regional and sub-regional human rights instruments. Prior to 1994, there was a lot of government oversight and rules to make sure that the right to free press is excised in a mode that the government of South Africa at that time wanted. In the current democratic South Africa, the right to free press is constitutionally protected. However, this does not mean that the right to free press is an unlimited right. As it is the case with any other right in the Constitution, it can also be limited. Regulation 14(2) of the Disaster Management Act under the national state of disaster relating to the corona virus pandemic can potentially violate the right to free press in South Africa by criminalising the publication or broadcasting of fake news relating to corona virus pandemic. This study makes some recommendations to the South African government on how it can deal with fake news relating to the corona virus pandemic under the national state of disaster without affecting the enjoyment of the right to free press.Item Open Access The legality of land expropriation without compensation in South Africa: A comparative in international legal approach(2020-09-21) Mawere, Joshua; Iyi, John - Mark; Mopai, ZamokhuleThe focal problem anchoring this study, is that there is no consensus on the legality of expropriating land without compensation in South Africa in light of international and regional laws. Therefore, the study examines the legality of expropriating land without compensation in South Africa. This study aims to find out whether expropriating land in South Africa without compensation is legal, taking in to account the international, regional and sub-regional standards on compensation. It further seeks to find out whether the proposed methodology of expropriating land without compensation is in tandem with sub regional, regional and international laws. In addition, the study seeks to find out whether it is legal and necessary to amend the property clause to permit the expropriating of land without compensation in South Africa. The study gave an appraisal of the historical background igniting the volatile issue of expropriation of land without compensation. The study also analysed international and regional instruments governing issues concerning expropriation of property and compensations. Lastly, the study undertook a comparative international legal exposition between South Africa, China and Zimbabwe on the issue of land expropriation without compensation. This was simply done to establish the acceptable compensation regime at both the domestic and international level.Item Open Access Medical negligence as novus actus interveniens: an analysis of the South African delictual jurisprudence(2019-05-18) Matumba, Rendani Margaret; Nwafor, A. O.; Lubisi, V. E.The South African Constitution guarantees equal rights to everyone. The right to equality is specifically protected in Section 9 of the Constitution. Section 9(1) states that ‗everyone is equal before the law and has the right to equal protection and benefit of the law‘. However, ensuring equality of treatment between the victim of medical negligence and the health service provider has not enjoyed a satisfactory judicial approach. The causes of death or harm suffered by the patient poses a serious problem in the medico-legal investigation. The major focus of this proposed dissertation is the impact on the chain of causation from the victim‘s perspective because of medical negligence and the South African courts‘ approach in such matters. The courts do not seem to have satisfactorily applied the principles of novus actus interveniens in such cases. The proposed research hopes to expose unfair discrimination against the victim of medical negligence through its analysis of the courts‘ approach in medical negligence claims. The approach used by the courts will be critically analysed to determine whether the degree of legal or judicial protectionism in favour of the medical profession is adequate. In recent times, government health service providers have inundated government health departments with claims arising from medical negligence. Although this could seem beneficial from the victim‘s perspective as any relief obtained could be enforced on the assets of the relevant health department, the success level is relatively low as the concept of novus actus interveniens has continued to pose a great challenge to the victim in proving a claim against the medical personnel. This research sought to find out how the protection of victims of medical negligence could be enhanced in spite of the common law defence of novus actus interveniens available to the health service providers.